The Queen v Rongonui

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/99

THE QUEEN

JANINE WAIWERA RONGONUI

Hearing:	4 October 1999
Coram:	Elias CJ Richardson P Thomas J Blanchard J Tipping J
Appearances:	G J King and T D Hikuroa for Appellant K G Stone and J C Pike for Crown
Judgment:	13 April 2000

JUDGMENTS OF THE COURT

ELIAS CJ

Table of Contents

Para No

Background................................................................................................ [2]
Evidence of previous burglaries of Pheap Im by appellant....................... [7]
Evidence of accused’s earlier imprisonment........................................... [17]
The ruling as to the defence evidence..................................................... [27]
Provocation.............................................................................................. [65]
The characteristics of the accused and the power of self-control............ [72]
Proportionality of response.................................................................... [136]
Failure to specify relevant characteristics............................................. [143]
Court appointment of psychiatrist......................................................... [145]
Comments of Crown Solicitor............................................................... [149]
Conclusion............................................................................................. [151]

Janine Rongonui was convicted after trial in the High Court in Wellington of the murder of Pheap Im and was sentenced to the mandatory term of life imprisonment. She appeals her conviction on the grounds that rulings made by the trial Judge during the course of the trial and his directions in the summing up to the jury caused a miscarriage of justice. Two main points are raised. It is claimed that the Judge’s ruling that the evidence of the defence witnesses could not be called unless the appellant gave evidence to establish its relevance was wrong and deprived the appellant of her right to elect not to give evidence. And the appeal raises again the question of the correct application of the objective standard for the partial defence of provocation contained in s 169(2)(a) of the Crimes Act 1961, a question considered by this Court in R v McGregor [1962] NZLR 1069, R v McCarthy [1992] 2 NZLR 550, and R v Campbell [1997] 1 NZLR 16.

Background

Rongonui and Pheap Im were neighbours in the block of flats in which they and their children were living at the time of Pheap Im’s death. At the trial it was not in dispute that on the morning of 24 June 1998 Rongonui stabbed Pheap Im to death in a frenzied attack in which more than 150 wounds were inflicted, many to the face. There was no question of full exculpation of the accused at trial. No complete defence such as insanity or self-defence was put forward on behalf of Rongonui, although the Judge decided himself to leave the issue of insanity to the jury. Rather, the question for the jury on both the Crown and defence cases was whether the accused was guilty not of murder but of manslaughter. The defence was therefore a limited one. It was based alternatively on lack of the necessary intents for murder specified by s 167(a) and (b) of the Crimes Act 1961 and upon the partial defence of provocation provided by s 169.
The Crown and defence cases were substantially different. The Crown contended that Rongonui had killed her neighbour in the course of an aggravated robbery in which she had either gone to Pheap Im’s flat armed with a knife or had been surprised in the flat by Pheap Im who may have confronted Rongonui with the knife. It was not in dispute that the appellant had stolen a number of items from the flat following the killing. The items stolen included a bankcard, the access number for which had been extracted from Pheap Im by Rongonui during the course of the attack. The Crown suggested that the number had been obtained after torture, and before the fatal blows were struck. The killing was followed by a wholesale looting of the flat. The appellant returned to her own flat after the killing to obtain a bag in which to carry the property away.
The defence case was that Rongonui was distraught. She had been under extreme social and financial pressure since the father of her four children had been gaoled some months previously for his violence towards her and one of the children. She was suffering from a major depressive episode triggered by recent and historic violence and sexual abuse and was suffering from post-traumatic stress disorder. She was brain damaged as a result of long-term physical and chemical abuse. She functioned at the level to be expected of a child or young person. Despite these handicaps, Rongonui was said to have made great efforts to be a good parent. The self-esteem she had managed to salvage from her mangled past was largely tied to her view that she was making a success of mothering her children. On the day of the killing, she had received a letter which gave her reason to believe that her children were about to be removed from her care by the Children and Young Persons Service. She believed that during the previous night, when she had been severely intoxicated, she had been sexually assaulted. On the morning of the attack, she had been physically assaulted by her then boyfriend, whom she had found in bed with her friend. Immediately before going to Pheap Im’s flat she had been rejected by others she had turned to for help in babysitting her children so that she could deal with the Children and Young Persons Service.
In that state, the case for the appellant was that she had approached Pheap Im to ask her to baby-sit the children while Rongonui tried to sort matters out. Her version of events, recorded on video in the police interview, without prior legal advice, was that Pheap Im refused to help and produced a knife. The appellant acknowledged in the interview that the knife, a white bone-handled one, belonged to her but said she had lent it to Pheap Im some days beforehand. The defence case was that the rejection of help with her children, and the presentation of the knife at her (which, because of the abuse she had suffered all her life, produced in the appellant an extreme reaction) caused Rongonui to lose control. She said in the interview that she wrested the knife from Pheap Im (cutting her own hand in the process) and started to stab. When the first knife broke, she went to fetch another knife from the kitchen and continued the attack.
In the interview the appellant acknowledged stealing property from the flat but said that she took the property after the injuries had been inflicted and when she had panicked after realising what she had done. Items taken included worthless used property, such as half-used tubes of toothpaste, photographs, and deodorant, which counsel for the appellant maintained supported the explanation that the thefts were indeed undertaken in blind panic. Although not referred to in the interview, the defence case was that when Pheap Im was mortally wounded, the appellant, realising that she would need to escape with her children, asked her also for her bank card access number and wrote it down on a page torn from the telephone directory Pheap Im was holding when the confrontation began.

Evidence of previous burglaries of Pheap Im by appellant

In the trial before Ellis J and a jury the Crown called forty-one witnesses. One of the witnesses, Nadine McKenzie, gave evidence of receiving a phone call from Janine Rongonui at about 9 am on 24 June. In the conversation, the appellant said that she thought she had killed her neighbour and asked if she could bring her children around to Ms McKenzie’s house. The appellant later arrived with bags. The witness bandaged the appellant’s cut hand. Rongonui described what had happened, saying that she had stabbed her neighbour in retaliation after the neighbour had first stabbed her in the hand. In her evidence in chief the witness said that Rongonui had told her that she was in the house “looking for money”.
Ms McKenzie was cross-examined about the basis of this statement. She acknowledged that in her statement to the police she had said that she had “assumed” that Janine had been in the flat looking for money. Crown counsel then sought leave of the Judge to re-examine the witness upon the basis of her assumption. According to statements made by Ms McKenzie to the police, Janine Rongonui had told her previously that she had taken cash from Pheap Im’s flat without being seen. The Judge refused the application, in the exercise of his discretion, on the basis that the evidence was “really evidence of a propensity, albeit quite cogent”. The ruling was subject to the accused not presenting to the Jury “a complexion on the matter that does not accord with in fact the evidence I am withholding from the Jury”.
A further witness, Yvonne Ahnau, referred in her brief of evidence to Janine Rongonui’s admissions that she had on two or three occasions from March 1997 stolen money from Pheap Im’s wallet in her room. Defence counsel objected to this evidence being led. In his ruling on the point Ellis J acknowledged that the evidence was to the same effect as that earlier ruled to be inadmissible in the case of Nadine McKenzie. He concluded, nevertheless, that the evidence should be led:
The accused’s account in the video interview is that her initial contact with the victim was to ask her to look after the accused’s children while she attended to matters raised in a letter from Social Welfare or CYPS. The Crown’s case is that she was found by the victim in the process of stealing property, and money in particular, and it was that that gave rise to the confrontation where the victim faced the accused with a knife and telephone book.
…
In my view the reason for the confrontation is a very important aspect of the prosecution case and the evidence that appears in the depositions is closely related to the facts of this case, bearing in mind the wholesale taking of things from the property after the stabbing had occurred.
I am satisfied, therefore, that it is in the interests of justice that this evidence be given, notwithstanding its prejudicial effect and the fact that it relates to what took place on previous occasions. Accordingly, I allow the prosecution to endeavour to elicit this evidence from the witness and things can be reviewed depending what the witness says.
On behalf of the appellant it is submitted that the evidence was not probative of the questions of intent or provocation which were in issue and ought not to have been permitted because of its illegitimate prejudice. In addition, it is submitted that the Judge further erred in giving the jury no direction in his summing up as to the legitimate use of the evidence.
The Crown contention is that the evidence bears strongly upon the motive of the appellant in going to Pheap Im’s flat and counters her explanation that her purpose was simply to ask her neighbour to mind her children. The fact that the appellant had admitted going into the flat on two or three previous occasions to steal is said to be “consistent with the intentions of the appellant, as portrayed by the Crown, and tends to negate the arguments advanced for the appellant, that this was some kind of reaction to her confrontation with the victim”. Because the appellant had been in Pheap Im’s flat without invitation before to steal money, “it is therefore likely that her motivation on this occasion would be the same as before, it being clear that she was very short of money at this particular time, and followed the killing with an extensive theft of the deceased’s property”. It is submitted for the Crown that the evidence shows that the appellant was not provoked, as she claimed to be, but rather was “intent on gaining entry to steal the property”.
The evidence indicated a knowledge on the part of the appellant of the availability on previous occasions of money in Pheap Im’s flat and a preparedness to steal from her neighbour. Such evidence was relevant to the relationship between the two women. The relationship was of significance for the defence case. It was that the two were friends who borrowed household items from each other (including the knife used to kill Pheap Im) and helped each other with babysitting. In addition to its relevance in explaining how Rongonui’s knife was, on her account, in the possession of Pheap Im, the previous good relationship was also significant to the defence case of sudden loss of self-control arising out of provocation.
The evidence was logically relevant to a central issue, the accused’s intent at the time of the confrontation which led to Pheap Im’s death and a significant inquiry, whether the knife was produced by Pheap Im. In those circumstances I agree with the Judge’s conclusion that the evidence was “closely related to the facts of this case”. It was properly admitted. Without it, the jury did not have the full picture.
On the other hand, the admission of the evidence entailed risk of improper prejudice to the appellant. It was of earlier discreditable behaviour by the accused towards the victim of a dreadful crime. It was evidence of previous behaviour consistent with the Crown theory of the intent with which the appellant went to Pheap Im’s flat. Mere consistency did not, however, give the evidence strong probative force. It did not deal with thefts which are similar to the robbery the Crown case here suggests precipitated the attack. Nor were any earlier thefts undertaken against the background of crisis about the care of the children. That crisis was confirmed by other witnesses, including the neighbour who had first turned down the appellant’s request for help in babysitting the children that morning. The earlier burglaries appear to have been intrusions undertaken at a time when Pheap Im was not present.
There was a risk that the jury would be generally influenced against the accused by feelings of revulsion for her or sympathy for the victim. In addition there was a risk that the jury would be distracted from scrupulous examination of all the circumstances of the death of Pheap Im and would jump to the conclusion that because the appellant had broken into Pheap Im’s flat before to steal, she must have done so on the occasion in issue. Indeed, the submissions of Crown counsel to this Court, already referred to, suggest that the evidence was introduced so that the jury could draw an inference that the motive for the entry into Pheap Im’s flat was “the same as before”.
I consider that the Judge erred in not warning the jury of the use to which it could legitimately put the evidence of the previous burglaries. Where an accused’s bad disposition or criminal propensity is disclosed by evidence which is properly admitted because it is sufficiently probative of an issue in the trial, it is necessary for the judge to instruct the jury as to the proper use of such evidence. The jury should have been warned that it would be wrong to conclude from the evidence of the earlier burglaries that the accused must have gone to the flat intending to rob Pheap Im. In the present case no such warning was given. In my view the omission in the circumstances may well have occasioned a miscarriage of justice.

Evidence of accused’s earlier imprisonment

Three witnesses made reference during the course of their evidence to other offending by the appellant. A taxi-driver, who drove Rongonui to Porirua after Pheap Im’s death, told of a rambling conversation in the course of which Rongonui admitted to the killing. The taxi-driver formed the view that the appellant was mentally unwell. She described how the appellant had acknowledged having been in Arohata Prison: “When we went past Tawa she mentioned that she had been in Arohata”. This evidence had not been briefed and was not expected by counsel for the Crown. It was not followed up further.
The police officer who interviewed the appellant, Detective Eales, gave evidence that before he spoke to Rongonui he “advised her she was under arrest for an unrelated matter”. Again, this information was not taken further.
Finally, the psychiatrist called by the Court, Dr Judson, gave evidence that he had referred to “prison medical records from 1985 and since 1998”. In discussing the appellant’s psychiatric history he said, “Her only other psychiatric contact appears to have been in prison in 1985 and from 1998 to present.”
The evidence disclosed to the jury that, before the death of Pheap Im, Janine Rongonui had been in Arohata prison in 1985. It also disclosed that at the time Rongonui was spoken to by the police in connection with the death she was being sought in connection with an unrelated offence. The jury may also have been left with the impression that since 1998 Rongonui had been in Arohata as a sentenced prisoner, rather than on remand.
The Judge properly warned the jury in his summing up that they must disregard the evidence that the appellant had been in Arohata Prison:
I mention to you something so that you will put it completely to one side. There has been evidence that the accused had been in Arohata Prison in 1985, and there was other mention of problems she has had in the past. They are of some significance to you when you are considering the stresses she has been under during her life. That have been analysed for you, especially by the Doctors and Mr Shirley. But what you are not to do is say well the accused was obviously in prison in 1985, so she must be guilty of this. I know that sounds ridiculous, and so it is. You are certainly not to use any suggestion of past convictions as anything to do with your decision here, except when you are considering her state of mind. It would be quite wrong of course to do that, to enquire further into those convictions.
Counsel for the appellant submit that the admission of the evidence from the three witnesses already referred to occasioned a miscarriage of justice. The Judge’s direction was “insufficient to counter the prejudice against the appellant occasioned through the admission of the evidence”.
Where there is inadvertent disclosure of prejudicial information about an accused, the trial Judge has a discretion to discharge the jury. Whether it will be proper to do so depends upon the facts of the particular case: R v Weaver [1968] 1 QB 353; R v Yeates [1992] 1 NZLR 421.
This was a case where the appellant accepted responsibility for culpable homicide. It was not a case where identity was in issue and where there was a risk that the jury might reason that the criminal past of the accused made it likely that she was the offender.
Nor was it a case where the defence strategy was undermined by disclosure of previous convictions. The appellant’s troubled background was a considerable part of the defence case that she lacked the intent for murder or was acting under provocation. It was the foundation upon which the psychiatric opinion evidence as to the appellant’s state of mind at the time was based. The expert witnesses for the defence and the Court and a number of lay witnesses for both Crown and defence gave direct evidence of the appellant’s background. They dealt frankly with her substance abuse, the brain disorder which resulted from it, the physical abuse she has suffered throughout her life, her personality and anti-social disorders, parenting difficulties, and chaotic lifestyle characterised by abusive relationships.
I accept the submission made by counsel for the Crown that, with such background, the references to Arohata and to the prison records perused by the Court-appointed psychiatrist, and the mention of an arrest for an unrelated matter, are “overwhelmed by the context”. The direction given by the Judge in his summing up in my view was wholly adequate to deal with any illegitimate use of an aspect of the appellant’s life which arguably arose out of the same abuse and dysfunction relied upon for the defence and was not inconsistent with it.

The ruling as to the defence evidence

At the conclusion of the Crown case, counsel for Rongonui, before his formal election as to whether to call evidence and before his opening address, informed the Judge and Crown counsel in the absence of the jury that the defences were provocation and lack of the intents specified for murder in s 167(a) and (b). Both defences raised the state of mind of the accused at the time of the homicide. Counsel for the accused advised the Court that he proposed to call two expert witnesses to give their opinions on that topic. They were Dr Taylor, a psychiatrist, and Mr Shirley, a psychologist.
In addition, two lay witnesses were to be called who would give evidence about the accused’s recent and past family history. Their evidence indicated the stresses Rongonui had been subjected to and her behaviour in response to them. The first witness was the accused’s brother. His brief detailed the brutal family upbringing Rongonui had been subjected to and the consequences for the nine children of the family. The second lay witness was a social worker with the Baptist Church who worked in the field of child care. She had befriended the accused and assisted her in coping with her children and dealing with the Children and Young Persons Service from October 1997. This witness had direct knowledge of the background to the letter from CYPS which, on both the defence and Crown cases, was a significant event in the sequence which led to Pheap Im’s stabbing. The witness had been designated at a Family Group Conference as a support person for Rongonui when the decision was taken to leave the children in her care. Because of the deterioration in the home conditions and in Rongonui herself, this witness had contacted CYPS to express her concern about the children. It is apparently in response to that information that the CYPS letter, convening a further Family Group Conference on short notice, was sent. The witness had also, through her dealings with Rongonui, met Pheap Im and knew something of the relationship between the two women and the fact that Pheap Im had occasionally babysat for Janine Rongonui’s children.
Crown counsel objected to all the defence evidence. The main ground of objection concerned the availability of the defence of provocation. The Judge ruled that there was sufficient evidence of provocation on the accused’s admissions for the issue to go to the jury. He also did not find it necessary “at this stage of the case” to rule on the Crown contention that, even if provocation was available, the defence evidence was irrelevant. That submission was made on the basis that the evidence bore only on the accused’s particular self-control which was said not to be relevant under s169 of the Crimes Act 1961 because it imposes upon an accused the standard of self-control of an ordinary person.
The Judge found it unnecessary to decide the relevance of the evidence to the defence of provocation because he was “satisfied that the accused’s state of mind and her ability to form intentions, in particular the specific intentions referred to in s167(b) are a real issue for the Jury and the medical evidence that is proposed bears directly on that”. It is convenient to note here that, irrespective of whether the expert medical evidence was relevant to the objective issue of self-control in s169(2)(a) (a question further considered below in dealing with the appeal on the provocation direction), it was clearly relevant to the subjective question of actual loss of control under s169(2)(b). The expert evidence was accordingly in my view relevant both to provocation and to intent.
The Judge’s ruling as to the admissibility of the evidence was however “subject to the question as to whether or not the accused must be called to lay the proper foundation of fact”. On that question the Judge indicated that he would hear further from counsel. After doing so, he concluded that the proposed defence evidence was not admissible unless the accused gave evidence. The arguments put forward are not recorded in the ruling, which simply reads
Following this decision Mr Stone submits that in respect of all three briefs as presented, they should not be admitted unless the proper factual foundation is laid by the accused giving evidence. I agree.
The basis for the decision is to be gathered from the Judge’s earlier discussion of the evidence in ruling on the Crown objection to the defences. It appears to be that the briefs of evidence contained information about the appellant’s personal history and the events surrounding Pheap Im’s death supplied to the witnesses by the appellant and were inadmissible hearsay in that form. Although such statements could be used by the expert witnesses in forming their opinions, an evidential foundation had to be laid. The terms of the ruling meant that the foundation had to be laid by the accused herself giving evidence.
Those accused of crimes have been competent to give evidence on their own behalf in New Zealand since 1889, but only if they elect to do so. The principle that an accused person is not to be compelled to give evidence is preserved by s 5(2) of the Evidence Act 1908. The appellant contends that the Judge’s ruling meant that she was effectively constrained to give evidence in order to put her defences before the jury.
Counsel for the appellant argues that sufficient evidential foundation had been laid for the evidence of the two expert defence witnesses in the Crown case or was available in the evidence of the two defence lay witnesses. In any event, it is submitted that the statement of the diagnostic facts reported to the expert witnesses by the accused and as gleaned from her medical and prison records, upon which their opinions were in part based, did not make the evidence inadmissible but, at most, affected its weight. A miscarriage of justice is said to have resulted from the Judge’s ruling because the accused, as a result of the mental and cognitive impairment objectively assessed by the expert witnesses, lacked the insight to be a satisfactory witness in her own behalf.
The Judge and the Crown had no warning of the defence expert evidence. It was not supplied in advance so that the Crown could consider its position and decide whether or not to brief expert evidence in rebuttal. It is understandable that in the circumstances of the trial the Judge did not in his ruling have the opportunity to attempt any detailed analysis of the evidence proposed to be called either in its own terms or against the Crown evidence. But the arguments put forward on appeal make it necessary to undertake such assessment in order decide whether the Judge was right to conclude that there was insufficient foundation for the defence evidence unless the accused herself gave evidence.
The evidence of the lay social worker did not deal with the events of the stabbing. It was largely concerned with the witness’s direct observation of Janine Rongonui’s parenting of her children, the involvement of CYPS, the deteriorating family circumstances once other adults moved into Rongonui’s flat in about March 1998 and the violence seen by the witness to have been inflicted upon Rongonui by her domestic partners and flat-mates. The witness proposed to give evidence of her instigation of the CYPS reconvening of the Family Group Conference at which the placement of the children was likely to be reconsidered and her receipt of a copy of the letter received by Rongonui on the morning of the stabbing. None of this was hearsay. It was admissible evidence.
In addition, the witness made some reference in her brief to information which had been given to her by Rongonui. It was not extensive and was substantially uncontentious. It included references to Rongonui’s having been in a Women’s Refuge before the witness had met her. That circumstance had already been alluded to by a Crown witness who had met Rongonui in the refuge. The only other information in the brief of which the witness did not have direct knowledge related to Rongonui’s past:
I arranged for some baby gear for Janine and we became friends. Over the next month I saw a lot of Janine and she opened up to me about her past. Janine told me that she had had problems with alcohol and substance abuse in the past. She also told me about physical and sexual abuse she had been subjected to for nearly her whole life. She told me about her former partner [P] and how he had been to prison for assaulting her.
Although technically hearsay, it is difficult to see that this background information was in fact contentious. Moreover the circumstances of its disclosure, months before the incident with Pheap Im, suggest that it was reliable. Since Rongonui’s alcohol and substance abuse and the violence she had been subjected to from her former partner were well-documented, the only information not readily verifiable was the long-term sexual abuse disclosed.
The defence expert opinion evidence was based upon psychometric tests of the appellant carried out by Mr Shirley, the experts’ observations of Rongonui at interview, her medical and social history and the circumstances at the time of the stabbing. The medical and social history had been in part obtained from prison and medical records. The experts also relied upon Rongonui’s own account, both of her earlier history and of the events which led to Pheap Im’s stabbing.
Mr Shirley’s brief of evidence described the psychometric testing he had undertaken of the appellant’s intellectual functioning. He found that she exhibited impairment “highly suggestive of organic brain damage”. This evidence, which was in the event accepted by Dr Judson, the psychiatrist called by the Court, was not hearsay.
In addition, Mr Shirley found the appellant to be suffering from dissociative amnesia. The condition results in an inability to recall important, usually traumatic, information which is too extensive to be explained by normal forgetfulness. In that diagnosis, Mr Shirley relied upon the appellant’s description of inability to recall anything of her life history between the ages of three and ten, her report that she had experienced “blackouts” (in which she is able to do things but as if she is “not really there”) for most of her life. He referred also to her reported inability to remember events the night before the killing. From the circumstances in which the appellant found herself the next morning, she believed she had been subjected to a sexual assault. She reported that she had also been beaten that morning.
Mr Shirley’s assessment of the appellant was that she met the diagnostic criteria for antisocial personality disorder, post traumatic stress disorder, dementia due to multiple aetiologies, alcohol dependence and intoxication, dissociative amnesia and was suffering from a major depressive episode at the time of the homicide. In part these diagnoses depended upon information supplied to Mr Shirley by Rongonui. Much of it was uncontentious or was verified by Crown witnesses. Some was substantiated by the evidence of the appellant’s brother which the defence proposed to call.
Based upon his diagnosis, Mr Shirley expressed his opinion as to Rongonui’s behaviour at the time of the killing. The immediate factual background to the killing was recorded:
Ms Rongonui was stressed by her personal circumstances, having four young children, financial difficulties, and impending legal problems. She was aware that her level of functioning was deteriorating. She made an unsuccessful attempt to ask for help at a consultation with her GP two weeks prior to the alleged murder. She felt rejected, compounding her frustration.
The 24 hours prior to the alleged murder, Ms Rongonui had received a letter from CYPFS in relation to a conference regarding the wellbeing of her children. This appears to have struck at the one area of her life to which she deemed herself to be committed, and at least formerly functioning well. She drank heavily during that day and evening, during the course of which she apparently experienced a sexual and a physical assault from which she has dissociated.
In a state of confusion and alcohol intoxication, Ms Rongonui sought help from one neighbour and was rejected. She later went to her immediate neighbour, the deceased, for assistance in respect of minding her children while she attended to the letter from CYPFS and again was refused help.

Mr Shirley’s opinion was

At the point of commission of the alleged murder, the above diagnostic considerations, the rejection of help when it was asked for, and the presence of a threat in the form of the deceased holding a knife, appears to have triggered a chain of events that had lethal consequences.
In an individual with Post Traumatic Stress Disorder, the physiological reactivity that can occur on exposure to internal or external cues that symbolise or resemble an aspect of previous traumatic events can trigger the General Adaptation Syndrome, placing the individual in a state of physiological hyperarousal, commonly known as “fight or flight”. Her impulse control weakened by her alcohol intoxication, Ms Rongonui flew into a rage, and displaced a lifetime of anger and inability to gain help on to an undeserving victim.
Still in a state of physiological hyperarousal, it is likely she dissociated, and continued to act without reason.
Consistent with an Acute Stress Disorder, and subsequently a Post Traumatic Stress Disorder in respect of this incident Ms Rongonui has a Dissociative Amnesia in respect of a number of important aspects of the stabbing, particularly the duration and ferocity of the attack.

Dr Taylor, the psychiatrist who was the second expert witness for the defence, provided an outline brief. He drew upon Mr Shirley’s psychometric testing as confirming brain damage likely to have been caused by Rongonui’s “well-documented massive early history of substance abuse”. He confirmed Mr Shirley’s diagnosis of major depressive disorder, post-traumatic stress disorder, dissociative amnesia which as well as the brain damage, “would in turn increase her impulsivity and propensity for loss of control of her actions.”
The threshold for her flying off the handle and losing control is vastly reduced especially if provoked in some way – a knife being presented to her?
Dr Taylor considered that earlier treatment of Rongonui with anti-psychotic medication in 1985 and 1990 (information obtained from her medical and prison records), indicated a misdiagnosis of schizophrenia. The medication “would have damaging effects on her” and “would also have made her distrustful and resentful towards further psychiatric treatment especially in any institution or say pursuing an insanity defence in this case”.
While this may have been somewhat speculative, Dr Taylor’s opinion was based upon clinical records and Mr Shirley’s testing in large part. As was the case with Mr Shirley he relied upon information as to Rongonui’s past history which in part was documented in earlier records but in part may have been put together from information provided by her. He also relied, as did Mr Shirley, upon Rongonui’s explanation that the stabbing was preceded by Pheap Im’s refusal to assist with the children and presentation of a knife. Dr Taylor considered that her history made Rongonui suffer from “hypersensitivity to rejection”. As well as the historic rejection and abuse, the appellant had before the incident with Pheap Im
been recently the subject of some form of sexual assault; then a physical assault; the break-down of some other relationship with this man Mike; the turning down of help from Kiri [the neighbour to whom she had first applied for help in looking after the children]; the letter and its affects from CYPS who reject her as a mother and finally the victim who rejected her – all within a short space of time.
In addition to the assumed facts common to the two reports, Dr Taylor referred to Rongonui’s history, since adolescence, of “intrusive thoughts of stabbing people”. These thoughts he attributed to Rongonui herself having been a victim of stabbing in the past and “the psychological consequences of sexual abuse”
On all occasions that I have interviewed her and discussed the incident with her she indicated that she had thoughts arguing in her head and she was distraught at not being able to control or remember them and consistently described the experience as a dream. Given her history and circumstances I would suggest it was a brief psychotic episode or dissociative state explains her actions.

Dr Taylor’s conclusion was similar to that of Mr Shirley:

From my knowledge of the patient and the events it seems clear she went into a dissociative state, vented all her pent up rage at her life as this was a re-enactment of her previous traumas and this would have a cumulative effect because of the disinhibition from brain damage; her earlier use of alcohol and recent sexual and physical assault and the impending removal of her children. This is also a violation akin to rape. (All she has got in life was her kids and everything was going from her). She stripped the victim’s flat. Some of the children’s items taken may have been a psychological compensation for the loss of her own children. That sort of behaviour and the taking of other larger items would also aid and make sure that she did get caught by the Police. As to the kicking of the deceased body as portrayed on the video interview this woman would not have the normal mind to check pulse or moisture from breathing to detect death, which explains the kick to gauge response.

The inclusion of hearsay evidence in expert testimony is not necessarily fatal to its admission: R v Smith [1989] 3 NZLR 405, at 408-411; R v Gordon (1993) 10 CRNZ 430. If it is largely non-contentious and the surrounding circumstances make it probable that it is true, it may be unduly technical to exclude it. That will often be the case with medical and family histories given to a psychiatrist or psychologist by the accused. Some sense of proportion needs to be maintained if the Court is not to be deprived of the assistance of expert knowledge about human functioning beyond common experience and if the trial is not to be dominated by matters of background only.
The proper course is not to exclude the opinion evidence and statement of the facts upon which it is based, but to admit it subject to a warning to the jury that the absence of direct evidence to prove the diagnostic facts may affect the weight to be given to the opinion evidence based upon them. That is the approach suggested in R v Smith (supra) at p 409-410, in approving the view expressed by the Queensland Court of Criminal Appeal in R v Schafferius [1977] Qd R 213 at 217:
Now firmly established as an exception to the hearsay rule, evidence is accepted from medical witnesses of statements of fact made by their patients to enable them to express an informed opinion. The reason is essentially pragmatic. In practice, doctors often rely on the histories given by their patients in making their diagnoses, and it may be thought unduly technical to expect a different standard from them in Court. Moreover, there are sometimes practical difficulties in the way of insisting upon direct evidence from the patient as a foundation for specialist opinion. However, as the cases above demonstrate, the absence of such evidence may well affect the weight to be given to that opinion.
Prompted by this inroad into the general rule, it might be argued that where it is the only evidence available, hearsay may be admitted if the surrounding circumstances make it highly probable that it is true. The following observations by Mason CJ in Walton v R (1989) 63 ALJR 226 at p229 (involving hearsay relating to identity and state of mind) may point to a new direction in the application of these less than logical rules:
The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial Judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay. It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself. But especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay

Much of the early and more recent social history described by the appellant to the expert witnesses was directly substantiated by Crown witnesses and by the social worker the defence proposed to call. While the self-reported history was technically hearsay, it was largely uncontentious background which was readily verifiable. The long term substance abuse, the violent relationships and the immediate pressures in relation to her children were all confirmed by other witnesses. The incidents of sexual abuse as a child reported by the appellant to the psychiatrists was information she had previously disclosed, months before the killing of Pheap Im when there cannot have been any purpose in distorting matters, to the social worker to be called for the defence. It is also consistent with disclosures made by Rongonui before the killing to other Crown witnesses and referred to by them in their evidence. The known and verifiable history of the appellant is consistent with such abuse. It was background information only.
It is not clear whether the Judge purported to do so, but I consider it would have been an unduly rigid application of the rule against hearsay to exclude the evidence of Dr Taylor and Mr Shirley unless the accused herself gave direct evidence of the direct physical and sexual violence to which she had been subject in the past, her own long term substance abuse and the stress she was under with her children. In the case of the appellant’s psychiatric history, to a large extent the information reported by the appellant was substantiated by the prison and psychiatric records drawn upon by Mr Shirley. The appellant’s undisputed immediate family background was the violent relationship with the father of her children. His violence towards her and one of the children had led to his imprisonment and the CYPS involvement with the family. Crown witnesses had given evidence that the appellant was beaten by her current boyfriend only a matter of hours before the homicide and of the parties and problems in her flat in recent months. One confirmed that on the morning of Pheap Im’s death, Rongonui believed she had been sexually interfered with while she had “blacked out” after drinking heavily the night before. Crown witnesses confirmed that the appellant at the time of Pheap Im’s death was extremely fearful that CYPS would remove her children from her care.
The evidence as to the appellant’s past history should have been admitted under the exception to the rule against hearsay recognised for diagnostic history in R v Smith. Since the circumstances already described made it highly probable that the appellant’s reported past history was reliable, it would not have been necessary for the trial Judge to warn the jury that the weight to be given to the expert opinion was affected by the absence of direct evidence of her history from the accused. An exception might, depending on the attitude of the Crown, have been made in the case of the history of “intrusive thoughts of stabbing” referred to in the opinion of Dr Taylor which was otherwise unconfirmed. Even so, the opinion evidence referring to that history should in my view have been admitted, subject to an eventual warning by the Judge as to weight, if at the end of the evidence that appeared to be warranted. As it turned out, no evidential foundation was laid by the appellant in her evidence for the reported persistence of intrusive thoughts of stabbing. Crown counsel did not however challenge the evidence of Dr Taylor on the point. And, indeed, the Court-appointed psychiatrist, Dr Judson, gave opinion evidence based upon his own discussions with the appellant of such thoughts. In the end, therefore, the matter does not appear to have been contentious.
Unlike the appellant’s past history, the events which led immediately to the stabbing of Pheap Im (and which were critical to the availability of the defences of provocation and lack of intent) were very much in dispute. In the absence of other evidence which made it “highly probable” that the reported statements of the accused were true and which outweighed the dangers of receiving hearsay evidence (in the extension of the exception suggested in Walton v R (1989) 63 ALJR 226 and R v Smith), direct evidence of the facts was necessary. The statements made by the appellant to Mr Shirley and Dr Taylor as to the stabbing were self-serving hearsay not admissible as evidence of the truth of what happened. In particular, they were not evidence that Pheap Im had rejected the appellant’s request for assistance in babysitting her children or had presented a knife at her. Since these actions by Pheap Im were essential to the defences of provocation and lack of intent, it was open to the Judge to reject the opinion evidence of the experts based upon them as not being directed to any relevant issue until a proper evidential foundation for the defences had been laid.
Such evidential foundation had, however, been laid in the course of the Crown case, as the Judge acknowledged in his ruling that provocation would be left to the jury, notwithstanding the Crown submission that it was not available. The evidence was contained in the statements made by the appellant in her interviews with the police and in statements she made to other Crown witnesses. The statements were part of the Crown case because they contained admissions. But once admitted in evidence, the whole statement, including any exculpatory or explanatory material, was evidence for consideration by the jury: R v Smith; R v Tonkins [1981] 2 NZLR 170. The present case is to be contrasted with R v Smith where the hearsay evidence sought to be introduced through the evidence of the doctor was the sole evidence upon which the defences of provocation and self-defence were advanced.
When the appellant was first spoken to by the police, at the side of the road before being taken to the police station, she spoke freely about the stabbing of Pheap Im. After being cautioned, Rongonui acknowledged that she should need a lawyer because of “what happened last night or yesterday with my neighbour”:
She went at me first with the knife. I took it off her and used it on her. What is the go with it now?
The Detective immediately stopped Rongonui from discussing the matter further until a statement could be taken at the police station. At the station, after the appellant had signed a statement acknowledging that she had been advised that she was not obliged to say anything and had the right to speak to a lawyer, an interview was conducted with her from 11.32 am to 1.08 pm. It was recorded by video. The transcript of the interview amounts to 76 pages. The statements made by Rongonui refer repeatedly to her concern for her children, her receipt of the letter from CYPS and her fear that the children would be taken from her. She refers to the pressure she felt herself to be under as a result of the letter and her attempts to get help in understanding it. Her first reference to Pheap Im comes immediately after these references:
And because I asked her if she’d watch them and she said “No . . . I don’t like you any more.”
Rongonui described how her relationship with her neighbours in the block of flats deteriorated when she took in boarders. On the night before the stabbing, Rongonui said that she had “blacked out” after drinking. When she woke up she asked her son to fetch the mail because she had been told that a woman from Social Welfare had been around on Tuesday “and I was really worried that they were just going to take him”. After receiving the letter, she had trouble understanding it and asked her son to take it to a neighbour to read to explain, “cos, you know, I was freaking out cos I didn’t want them to take the kids off me”. The neighbour, who gave evidence for the Crown, confirmed getting a telephone call from the appellant asking her to read the letter and explain it. But the appellant’s son failed to deliver the letter. When she checked with him, he no longer had it. He said variously that he had put it in the rubbish, given it to his sister, and given it to the appellant’s boyfriend.
So I went to the Cambodian lady and seys to her “Oh, could you just watch the kids for me. I’ve got to go and take this letter and get see if they have got the letter cos my son reckons he hasn’t got it. And she said “No. I don’t like you any more” and she an I said “Well, can you just watch them for a” and I started walk away an she goes “Come here” so she went back in an she said “Hold on” and she got the phone book an then she went in by the kitchen an she said, I said “Well, can you just watch them I’ve got to go sort this letter out” and she said . . an that’s when, when I went to go an I said “Oh, come one. Just for a minute” an she went to go thing, you know grab the knife off me. I cut my hand and then I seys “Don’t do that” an next thing I did it. Huh. . . cos I was spinning round the . . . Full of crap.
When taken back to the event by the Constable, the appellant described going to Pheap Im’s flat with two of her children and knocking on the door to ask her to mind the children.
Well, she said “No. Don’t like you any more” and I said “Why” an she was not yelling at me or anything. (Shrugs) “An I don’t like you any more”. I seys “Oh, look, I have to do this cos I had. I’ve got a meeting on Friday” and I said “I’ve got to sort this letter out cos I don’t understand what it’s what it’s saying”. Well I knew I had got a conference but when I was told that they came on Tuesday from Tom I panicked more. . . . So anyway an she said “No” an then she said “Oh, hold on and she was I think, I don’t know who she was gonna ring but she had the phone book. . . An then so she, or oh she went, cos I couldn’t see cos the door was about that much open . . .And she came back and I ses “Oh, come on” an I started walking away an she started yelling an she started yelling and went back . . . . An she first thing . . . with the knife (gestures). An then I pushed her aside an . . . I did go inside her house eventually after she, seeing the knife (indicates) I went to go and yank it off her with my hand. I ses “Don’t fuckin do that” and I was just yeah.
Asked again to describe what had happened from the time the appellant was in the doorway and Pheap Im went away, Rongonui said that Pheap Im was away “just for a couple of seconds”:
An she had the book in her hand an then like it was closed an just got the knife an just said “No. You get out” and started pushing. Went like that with the knife (gestures) an I went to grab it like that . . . to turn and then just started stabbing her. . . . I pushed her inside the house cos she had done that and I started stabbing her . . . so I was flipping out over other things. Yeah. Yeah. I didn’t think that. . . . I just kept stabbing her. I wouldn’t stop.
When asked by the Detective why she wouldn’t stop, the appellant answered “Couldn’t”. Several times during the remainder of the interview the appellant described how she “couldn’t stop” stabbing Pheap Im. She referred to the things going on in her mind: the children, Social Welfare, family problems, money problems “my past”, “too much stuff on”, “it just got so much stuff on my mind”. She claimed to like Pheap Im and was not angry with her when she went to the flat. Rongonui acknowledged that she was not frightened by the knife because she didn’t think Pheap Im would use it:
Cos she went like that (gestures with left hand) I reacted and grabbed the knife.
Rongonui described getting a second knife after dropping the first and kicking Pheap Im as she lay on the floor, telling her to wake up. She could not recall how long she stabbed for. But thought that she had stabbed Pheap Im about ten times only, including in the face and throat. She described stealing from the flat after Pheap Im was dead because she realised she would have to take the children away and needed money to do so: “I was panicking . . . I just got panicked and took off”. She described showering and getting rid of her bloodstained clothing.
The statements made by the appellant to Dr Taylor and Mr Shirley as to the events on the morning of the death of Pheap Im do not go beyond the statements introduced by the Crown as part of its evidence. It was therefore unnecessary for any further evidential foundation to be laid for the opinions expressed by the two witnesses. The statements as to the appellant’s past history, upon which Mr Shirley and Dr Taylor in part based their diagnoses, were admissible as diagnostic facts recognised as an exception to the rule against hearsay. Moreover, in the circumstances, it was highly probable that most of the history given, not otherwise proved by direct evidence, was true. In my view the evidence as to the appellant’s background was admissible. To the extent that it was not possible to infer that the statements made by Rongonui to Dr Taylor that she had been subject to intrusive thoughts of stabbing in the past were reliable, the evidence was I consider admissible, subject to any warning the trial Judge thought it appropriate to give as to its weight. To the limited extent that the evidence of the social worker consisted of technical hearsay as to the appellant’s social history, it was information which was background to the events in issue and likely in the circumstances to be true. It, too, should have been admitted.
The Judge was in error in ruling that the evidence of the defence witnesses could not be called by the defence unless the appellant herself gave evidence. Sufficient evidential foundation had been laid in the Crown case. As a result of the ruling, the appellant had little choice but to give evidence if her defence was to be properly put. Even if the opinions of the experts did not bear upon any relevant special characteristic of the appellant for the purposes of s169(2)(a) (the point deferred by the Judge in his ruling), the evidence was important as to the question under s169(2)(b) whether the appellant had in fact lost her self-control, and the question of her intent under s167. The evidence of the social worker was important to confirm the strain the appellant was under at the time and to provide additional substantiation of the facts assumed in the expert opinions.
Effectively, by the ruling the appellant was deprived of the right to elect not to give evidence. It is not possible to infer that no miscarriage of justice resulted. The diagnosis of brain damage reached by the defence experts was confirmed by the psychiatrist called by the Court, Dr Judson. He considered that the appellant was suffering from a disease of the mind and agreed with the results of the tests reported by Mr Shirley which showed cognitive impairment. Dr Judson agreed with the diagnoses of post-traumatic stress disorder and major depressive disorder. At the time of the trial the appellant was being treated with anti-depressants. Indeed, during the course of her evidence, the Judge found it necessary to ask her when she had last taken her medication and what effect it had. That may, as counsel for the appellant suggests, be an indication of the Judge’s concern at the impression Rongonui was making on the jury. Certainly, the transcript of her evidence indicates some intemperate or baffled responses. Whether or not that is the case, there was a real risk that someone with the impairment all experts agreed the appellant to have would not do her case justice if required to give evidence. I would allow the appeal on this ground.

Provocation

The partial defence of provocation is provided for in s 169 of the Crimes Act 1961:
(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.
(5)No one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.
(6)This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under provocation given by one person, by accident or mistake killed another person.
(7)The fact that by virtue of this section one party to a homicide has not been or is not liable to be convicted of murder shall not affect the question whether the homicide amounted to murder in the case of any other party to it.
In his decision on the admissibility of the defence evidence, the Judge did not find it necessary, “at this stage of the case”, to rule on the Crown contention that the psychiatric evidence, being directed at characteristics of the appellant which affected only her power of self-control, was irrelevant for the purposes of s 169(2)(a). The Crown submission was based upon the construction of s 169(1)(a) adopted in R v Campbell. By it, the accused’s characteristics are relevant in assessing the gravity of the provocation and the accused’s susceptibility to it, but cannot be taken into account in relation to the standard of self-control expected of the accused.
While deferring the point in his ruling on the evidence, the Judge made reference to the difficulties of directing a jury in terms of the Campbell distinction between the characteristics of the offender and the self-control of an ordinary person:
These two concepts have troubled the Courts since they were enacted and I understand from Mr Stone that the matter in England is still developing, in that the English Court of Appeal in the case of Smith, which I have not had access to, has not followed the Privy Council case of Luc Thiet Thuan v R [1996] 2 All ER 1033. The position has been stated recently in the Court of Appeal in New Zealand in Campbell [1997] 1 NZLR 16 at page 25 where the Chief Justice has reviewed the position and he states that it is now clear that the characteristics of the accused can be taken into account only in relationship to the offender’s sensitivity or susceptibility to the provocation, and not to the offender’s power of self control. I can only say that from my own understanding, this leaves a virtually impossible task of making an understandable direction to the Jury in a case like the present where the two are inextricably joined in the mental processes of an accused.
The question of the relevance of the psychiatric evidence to the defence of provocation was not revisited until the end of the trial. In his summing up to the jury, the Judge suggested that the starting point for consideration of the defence of provocation was whether Rongonui had gone to Pheap Im’s flat to rob her, or to ask her to mind the children. Only on the second basis, put forward by the defence, did provocation arise. The Judge directed the jury that, if they reached that point, there were three essential ingredients of provocation to be considered: the characteristics of the accused; the power of self control of an ordinary person; and the fact of loss of self-control.
As I have already indicated, there are three essential considerations required by law that you must consider. The first is the characteristics of the accused. She gave you evidence of her personal history, her physical abuse, and the use of drugs and alcohol, the involvement with the Children and Young Persons Service with her children, leading up to family conferences, and you will consider all the details of the evidence that she gave you last Friday. You will also consider the evidence of Mrs Smith of events leading up to the situation in later June when the CYPS letter was received. The evidence was summarised by counsel yesterday.
As a matter of law, an accused’s characteristics include her disease of the mind described by the Doctors and Mr Shirley, but they do not include her ingestion of alcohol or cannabis the previous night and earlier that morning. Further, these mental characteristics can only be taken into account in assessing the accused’s sensitivity or susceptibility to the particular provocation. These special characteristics apart, she is expected to have the powers of self-control of an ordinary person.
So the second consideration is what are the powers of self-control of an ordinary person. You decide that as twelve ordinary reasonable people. Consider all the evidence. Decide whether the accused was on a short fuse because of her mental characteristics,
The third factor to be considered is whether the provocation, that is the rejection and presentation of the knife, did in fact deprive the accused of the power of self-control and thereby induce her to kill Pheap. After considering these three matters, you must decide whether the Crown has proved beyond reasonable doubt that what was done was not done under provocation. If the Crown has done so, then your finding of murder stands. If not, then you must reduce your finding to one of manslaughter. When you are considering suggestions of provocation or evidence of the sort that we have been discussing for the last two weeks, it is usual to look at the nature of the threat or the provocation itself and the nature of the response, and it’s perhaps commonsense to suggest that there should be some degree of proportionality between the threat and the response. You consider what would the person with the ordinary power of self-control do under the circumstances, would he or she retreat, would he or she do something less violent than what happened in this case. It is entirely a matter for you, it is not a question of law at all. But naturally you will look at all the circumstances both of the build up as to what happened and what happened at the time when you are assessing the suggested provocation.

The appellant makes three criticisms of this direction. First, it is submitted that the distinction drawn in Campbell, and applied by the Judge in his summing-up, misconstrues s.169. While acknowledging that the Judge was bound by Campbell to direct the jury that any characteristics of the accused were relevant only to her susceptibility to the provocation and not to her self-control, counsel for the appellant contends that the distinction is inconsistent with s 169. He submits that the characteristics of an accused are relevant both to the significance of the provocation and to the accused’s power of self-control. Effectively, the appellant seeks a return to the interpretation of s 169 accepted in R v McGregor.
The second submission made on behalf of the appellant is that the Judge was in error in his direction as to the proportionality of the response to provocation. In the circumstances of the frenzied attack here acknowledged, the suggestions that the response to provocation should as a matter of commonsense be proportionate to the provocation and that the proportionality of the accused’s response should be compared with that to be expected of a person with an ordinary power of self-control, effectively deprived the appellant of the defence of provocation.
Finally, it is contended that the Judge erred in failing to “properly identify and specify the special characteristics relied upon by the appellant”.

The characteristics of the accused and the power of self-control

Section 169 was enacted in its present form in 1961. The section codified and reformed the defence of provocation by which the common law, in deference to “human frailty” (East’s Pleas of the Crown (1803) vol 1, p 239), tempered the mandatory penalty prescribed for murder. It provided that culpable homicide, if induced by the provocation of the person killed, is manslaughter. The result is that the penalty is in the discretion of the Judge.
The development of provocation is described in R v McGregor and DPP v Camplin [1978] AC 705 and need not be repeated here. Originally, provocation depended simply upon whether the accused in fact acted in a passion brought about by some serious cause. “Serious cause” consisted of violence offered to the accused by the victim or a limited number of identified acts accepted to amount to sufficient cause for loss of self-control. By the middle of the nineteenth century, however, the objective component of this essentially causative inquiry (the requirement for some “serious cause”) had been replaced by the test that the provocative acts be sufficient to deprive a “reasonable man” of the power of self-control. That common law test was adopted in the New Zealand codification of criminal law. Thus the Crimes Act 1908 provided that provocation was “any wrongful act or insult” which was “sufficient to deprive an ordinary person of the powers of self-control”.
The wholly objective test did not make allowances for those people particularly susceptible because of unusual features not shared by those within the wide range of “ordinary people”. The sufficiency of the provocation was measured according to the effect it would have on a reasonable or ordinary man, even if the particular accused was not capable of meeting that standard of self-control. In R v Lesbini [1914] 3 KB 1116, the English Court of Criminal Appeal refused to take into account the mental deficiency of the accused in assessing the sufficiency of the provocation to him. That approach was endorsed by the House of Lords in Mancini v DPP [1942] AC 1 at 9 where Viscount Simon LC described the purpose of the test to be “so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did”. In Bedder v DPP [1954] 1 WLR 1119 the House of Lords rejected the contention that the physical characteristics of the accused modified the reasonable man standard. The impotence of the accused, the subject of taunts from the victim, was held to be irrelevant to assessment of the sufficiency of the provocation. Lord Simonds at p.1123 expressed the view that no distinction could be drawn between susceptibility because of temper and susceptibility because of a physical defect which conditions a person’s temper.
Section 169 was enacted to reform the law of provocation to provide what the Minister in introducing the Crimes Bill described as a less harsh and more reasonable test: (1961) 328 NZPD 2681. The new section modified the objective standard by providing in s 169(2)(a) that the sufficiency of the provocation to cause loss of self-control was to be assessed by the standard of “a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender”.
The purpose of the change made in s 169(2)(a), as described by the Minister in his introduction, was to modify the common law approach applied in Bedder v DPP:
Then there is an important clarification in clause 169, concerning the circumstances in which provocation can reduce an act of homicide from murder to manslaughter. In an English case a few years ago, Bedder v the Director of Public Prosecutions, the House of Lords confirmed that the test of provocation was what would provoke the ordinary man. Certainly no one should be able to escape a conviction for murder because he had a more violent temper and lost control of himself more easily than an ordinary person, but the decision of the Lords went a long way further. It said in effect that one has to disregard the physical peculiarities of the accused even if the provocation itself was related to those peculiarities. For example, if a blind man killed a person who was jeering at his blindness, that could not be provocation according to this view because an ordinary man, who is not blind, would not be provoked. The result can be extremely harsh, and the Bill provides a more reasonable test. Anything done or said may now be provocation if 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. (328 NZPD 2681.)
The language of the section draws no distinction between physical characteristics and mental characteristics. That the reforms were thought to permit consideration of psychological characteristics may be seen in the Minister’s explanation of the decision to omit the requirement contained in the former s184 of the Crimes Act 1908 that the act of provocation be immediately prior to the retaliation:
This disregards psychological reality for it may well happen that instead of blazing up at once a man may brood perhaps for hours over a provocation until his control snaps. It all depends on the type of person. In the Bill there is no such artificial restriction, and if there has been in fact provocation, and loss of control it is open to the jury if it thinks fit to return a verdict of manslaughter.
The test in s 169(2)(a) has been described as a hybrid, importing objective and subjective elements which were said in McGregor to be “discordant”. That may be overstating matters. The test in subs.(2)(a) itself is objective: the jury is required to assess the sufficiency of the provocation and not merely to decide whether the accused in fact was deprived of his self-control by reason of it (the issue in subs.(2)(b)). But the standard applied by s 169(2)(a) in assessing “sufficiency” of the provocation is more responsive to the particular circumstances and the particular accused than that constructed solely upon “the ordinary man”.
Section 169 first came to be considered by this Court in R v McGregor. North J, delivering the judgment of the Court, acknowledged that the test attempted to accomplish what the House of Lords had said was not possible:
Notwithstanding the observations of their Lordships in Bedder’s case (supra), to the effect that it was well-nigh impossible to invest a reasonable man with the peculiar characteristics of the accused without making nonsense of the test, it is apparent, even from a cursory examination of the new section, that those who were entrusted with the drafting and approving of the provisions of the Crimes Act 1961 have attempted that task. Therefore it is plainly the duty of this Court to endeavour to see that their efforts are not rendered unavailing notwithstanding the manifold difficulties that arise in defining what is meant by the somewhat vague words “the characteristics of the offender”.
Although in McGregor the Court considered that there was no evidence of provocation to go to the jury, it went on to discuss the defence of provocation generally:
The earlier statute contemplated “an ordinary person”. Now there has been appended this qualification – “an ordinary person but otherwise having the characteristics of the offender”. If the phrase “but otherwise” were construed to mean “in other respects” then the test of the power of self-control of an ordinary person would remain unaffected. Upon this interpretation, the section would constitute as provocation anything which in the circumstances of the case would have led to the loss of control of an ordinary person, being one who in other respects (i.e. other than the power of self-control) had his own personal characteristics. Such a construction would make the characteristics of the offender relevant, but not in regard to self-control; the added words would therefore have effected little, for it would still be the reaction of the ordinary person in regard to the exercise of control (which is what matters) that would govern the consideration of the matter as hitherto. This could not have been the intention of the Legislature, for the purpose of adopting the new provision must have been to give some relief from the rigidity of the purely objective test of the reactions of a reasonable man. The Legislature must be regarded as having in contemplation a person with the power of self-control of an ordinary person, but having nevertheless some personal characteristics of his own, which are proper to be taken into account, so that his reaction to provocation is to be judged on the basis whether the provocation was sufficient to bring about loss of self-control in an ordinary person who nevertheless possessed as well the special characteristics of the offender.
If the characteristics of the offender are thus to be integrated with the concept of the ordinary man, then the ordinary man test becomes displaced, at any rate in cases where the offender has attributes which can be regarded as sufficiently distinctive to constitute characteristics.
……The offender must be presumed to possess in general the power of self-control of the ordinary man, save insofar as his power of self-control is weakened because of some particular characteristic possessed by him.
The Court considered, however, that some limitation of the word “characteristics” was necessary if the difficulties identified by Lord Simonds in Bedder at p 1123 were to be overcome and the standard of the “ordinary man” was not to be completely extinguished. It was of the view that a “characteristic” for the purposes of the subsection was one which was definite and with a sufficient degree of permanence to mark the offender off from the general run of mankind. “The ‘unusually excitable or pugnacious individual’ spoken of in R v Lesbini . . . is no more entitled to special consideration under the new section than he was when that case was decided.” Nor was a transitory state such as intoxication sufficient. Moreover, the Court emphasised that there must be some “direct connection” between the provocation and the characteristic: “the provocative words require to be directed at the particular characteristic before it can be relied upon”.
While acknowledging that the word “characteristics” is wide enough to apply to “mental qualities” as well as to physical, racial and religious attributes, the Court was of the view that “special difficulties . . . arise when it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics”.
In our opinion it is not enough to constitute a characteristic that the offender should merely in some general way be mentally deficient or weak-minded. To allow this to be said would, as we have earlier indicated, deny any real operation to the reference made in the section to the ordinary man, and it would, moreover, go far towards the admission of a defence of diminished responsibility without any statutory authority in this country to sanction it. There must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers. Beyond that, we do not think it is advisable that we should attempt to go. (at 1082.)
R v McGregor was reconsidered by this Court in R v McCarthy (supra). The judgment of the Court, delivered by Cooke P, makes reference to the criticism of McGregor in Adams on Criminal Law (2^nd ed) at paras 1264 to 1269. That criticism, as summarised in R v Tai [1976] 1 NZLR 102, at 105, was that it gave no weight to the “pivotal” word “otherwise” in s 169(2)(a). As explained in Tai, according to this view the jury’s task is “less controlled” than McGregor allowed: “it is to arrive at an opinion of the reaction of a person identical with the accused in all respects save one: he is to be considered as possessing the self control of an ordinary person”.
McCarthy did not explicitly adopt the Adams view that the language of s.169 precludes adjustment of the “ordinary man” standard by characteristics of the offender which impact upon his power of self-control. Rather, in McCarthy, the Court was concerned to relax the restrictions McGregor had placed upon the word “characteristics” and which had proved to be difficult to apply in practice:
In our view it has to be respectfully said, in the light of judicial experience of the operation of s 169, that the added and obiter observations in McGregor go somewhat too far and add needless complexity to the application of the section. We do not think that they have been found workable or followed closely in practice. A racial characteristic of the accused, his or her age or sex, mental deficiency, or a tendency to excessive emotionalism as a result of brain injury are, for the purposes of s 169(2)(a), examples of characteristics of the offender to be attributed to the hypothetical person. In a case where any of them apply, the ordinary power of self control falls to be assessed on the assumption that the person has the same characteristics. The question under the paragraph is whether a person with the ordinary power of self-control would in the circumstances have retained self-control notwithstanding such characteristics. It can be a difficult question, like others which are left to the common sense of juries, but we cannot avoid thinking that the difficulty is unjustifiably aggravated by the suggestion that provocation must be “directed at” a particular characteristic.
. . . [For the purpose of s 169(2)(a)] the hypothetical person is to be endowed with the accused’s brain damage and any personality consequences that it may have except as to the power of self-control, and to be faced in the circumstances of the crime with the alleged provocation by the victim which preceded the crime. Only the effect of alcohol, being transitory and not a characteristic, is to be ignored for the purpose of para (a), although it falls to be taken into account under para (b) in deciding whether the accused in fact lost self-control. In short the questions are whether the alleged provocation in fact caused the accused to lose self-control to the extent of committing the homicide, and whether a person with the accused’s characteristics other than any lack of the ordinary power of self-control could have reacted in the same way.
The Court in McCarthy doubted the reasoning behind the suggestions in McGregor that the provocation must be “directed at” the characteristics:
The added observations appear to have been influenced by the view that diminished responsibility had not been accepted by the New Zealand Parliament; yet, within a limited field, this may be seen as the inevitable and deliberate effect of the statutory changes embodied in s 169 of the Crimes Act 1961.
Provocation was further considered in R v Campbell. That case was concerned with the appropriateness of a direction as to proportionality between provocation and the response, but the Court took the opportunity to review the history of s169 more generally. Eichelbaum CJ, delivering the judgment of the Court, expressed the view that R v McCarthy had made it clear that characteristics can be taken into account only in relation to an offender’s susceptibility to the provocation and not in relation to the offender’s power of self-control.
Whether McCarthy drew such distinction may be doubted. The passage set out above from the judgment of Cooke P identifies “a tendency to excessive emotionalism” as a result of brain injury as an example of a characteristic which is to be assumed in assessing the “ordinary power of self control”. Although later passages seem to draw a distinction between the accused’s “characteristics” and “any lack of the ordinary power of self-control”, the reference to diminished responsibility indicates that the Court did not intend to suggest that the mental or psychological characteristics of the offender are excluded in considering whether the provocation was sufficient to deprive the hypothetical person in his place of the power of self-control. Certainly in Luc Thiet Thuan v R [1996] 2 All ER 1033 at 1043, in the majority judgment of the Privy Council, it was considered that the judgment of Cooke P in McCarthy treated the accused’s mental characteristics as relevant to the power of self-control under the New Zealand section.
In Campbell however the Court decided, adopting the analysis in Adams, that mental characteristics could not be taken into account if impacting upon the offender’s loss of self-control rather than his susceptibility to the provocation. The Court expressed the view that its interpretation led to the result that
New Zealand law is in harmony with that of England (R v Morhall [1995] 3 All ER 659, 666) and Australia (Stingel v R (1990) 171 CLR 312, 332; Masciantonio v R (1995) 69 ALJR 598, 602, 603), and is also aligned with the approach preferred by the majority of the Privy Council in relation to Hong Kong (Luc Thiet Thuan v R [1996] 2 All ER 1033).
It is the application of R v Campbell that the Judge in the present case said imposed an “impossible task”: how to direct the jury on the distinct treatment of the elements of susceptibility to provocation and the power of self-control when the two elements are “inextricably joined in the mental processes of an accused”.
On the appeal, counsel for the Crown acknowledged that present state of the law is unsatisfactory. Mr Pike submitted that McGregor is “unanswerable” and “almost inevitable” in its refusal to limit the relevance of “characteristics” to the question of susceptibility. But if the characteristics of an offender are to affect the self-control to be expected, it is necessary for the range of matters to be regarded as “characteristics” to be limited, “to preserve something of the reasonable person”. The balance struck by McGregor, he submits, was an appropriate one. Since then, however, the balance has been disrupted by the acceptance that characteristics encompass mental disorder or recognised personality disorder (as in McCarthy) even where the provocation is not “directed at” such characteristic. The attempt of the Court in Campbell (and perhaps McCarthy) to “keep a de facto defence of diminished responsibility at bay . . . by confining s169(2)(a) so as to admit characteristics as relevant only to susceptibility” is however equally doomed. Mr Pike submitted that “it must, with respect be thought that in practice no such limitation could be contemplated by a jury which accepted that there was a mental basis for increased susceptibility”.

The present law is plainly unsatisfactory. There must be doubt whether a jury can realistically be expected to understand the instruction which the statute requires of the Judge. Thoroughgoing reform, preferably in the context of an examination of the law of murder generally, is urgently needed or, if such reform is not thought appropriate, at least a clearer Parliamentary statement of what may or may not be taken into account by Judge and jury.

TIPPING J

Introduction

I agree that the appeal should be allowed and a retrial ordered for the other reasons referred to by the Chief Justice but I consider the issues in relation to provocation should be approached as indicated in this judgment.
In view of the Chief Justice's comprehensive review of the background to s169(2)(a) of the Crimes Act 1961, and her discussion of the authorities which are relevant both directly and indirectly, I shall come straight to what I see as the crucial issues on this topic. Ironically the passages from both R v McGregor [1962] NZLR 1069 (Gresson P, North and Cleary JJ) and R v McCarthy [1992] 2 NZLR 550 (Cooke P, Casey and Greig JJ) which are central to this discussion are obiter dicta but as they were fully considered and have been adopted and applied as authoritative nothing turns on that.
In my view it is appropriate to start with McCarthy and the modification which that decision introduced to the approach outlined in McGregor. The difficulty has always been to determine to what extent and in what way the wholly objective approach signalled by the words "having the power of self control of an ordinary person" is modified by the words "but otherwise having the characteristics of the offender". The context is whether the provocation is sufficient to deprive the hypothetical person envisaged by the statutory test of the power of self control. If the words in question are read literally the characteristics of the offender cannot affect the power of self control of the accused, because the accused must be regarded as having the power of self control of an ordinary person. But Parliament clearly intended the hitherto wholly objective test to be modified to some extent.
The difficult question arising concerns the relevance of the accused's established characteristic. Only two possibilities are logically open. Either: (1) the relevance of the characteristic is limited to its effect on the gravity of the provocation to the accused, albeit he or she must exhibit the power of self control of an ordinary person in the face of provocation of that gravity; or (2) the characteristic is relevant because it generally reduces the accused's power of self control in the face of provocation, and that general reduction is to be taken into account in determining the sufficiency of the provocation to deprive the hypothetical person envisaged by the test, of the power of self control. It has to be said at the outset that approach (2) is difficult, if not impossible, to reconcile with the statutory language which, whatever else it does, ascribes to the hypothetical person the power of self control of an ordinary person.
It is also useful at this early stage to mention the article entitled Provocation - Recharacterisation of "Characteristics" (1996) 6 Canta L.R. 195 by Professor Gerald Orchard, who is New Zealand's leading criminal law scholar. In his article Professor Orchard recognised the difficulties inherent in Parliament's attempt at combining the self control of an ordinary person, which the accused is deemed to possess, with the accused's other characteristics. He nevertheless regarded approach (1) as the only approach open on the statutory language.

McCarthy's case

Generally speaking it is approach (1) which was taken by this Court in McCarthy. That approach is also supported by the judgment of the majority of the Privy Council in Luc Thiet Thuan v R [1996] 2 All ER 1033. It is, however, necessary to examine closely the combined effect of McGregor and McCarthy. In McCarthy this Court followed in general terms the McGregor approach but indicated that the observation in McGregor that the provocation had to be aimed or directed at the characteristic went too far and should not be followed. It was said that such a requirement added needless complexity and had not been found workable. Nor had it been closely followed in practice. Five cases in which the subject had earlier been addressed were cited in McCarthy at 557. The passage from McGregor which was specifically referred to in McCarthy as causing difficulty was:
Moreover, it is to be equally emphasised that there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is sought to modify the ordinary man test. The words or conduct must have been exclusively or particularly provocative to the individual because, and only because, of the characteristic. In short, there must be some direct connection between the provocative words or conduct and the characteristic sought to be invoked as warranting some departure from the ordinary man test. Such a connection may be seen readily enough where the offender possesses some unusual physical peculiarity. Though he might in all other respects be an ordinary man, provocative words alluding for example to some infirmity or deformity from which he was suffering might well bring about a loss of self-control. So too, if the colour, race or creed of the offender be relied on as constituting a characteristic, it is to be repeated that the provocative words or conduct must be related to the particular characteristic relied upon. Thus, it would not be sufficient, for instance, for the offender to claim merely that he belongs to an excitable race, or that members of his nationality are accustomed to resort readily to the use of some lethal weapon. Here again, the provocative act or words require to be directed at the particular characteristic before it can be relied upon.
Special difficulties, however, arise, when it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics. In our opinion it is not enough to constitute a characteristic that the offender should merely in some general way be mentally deficient or weak-minded. To allow this to be said would, as we have earlier indicated, deny any real operation to the reference made in the section to the ordinary man, and it would, moreover, go far towards the admission of a defence of diminished responsibility without any statutory authority in this country to sanction it. There must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers. Beyond that, we do not think it is advisable that we should attempt to go.
It must have been the second paragraph concerning mental characteristics which was thought to create the difficulties alluded to. The first paragraph is essentially introductory to the second. In McCarthy this Court observed that McGregor "may have restricted" the ambit of qualifying provocation and that the words in question appeared to have been influenced by the view that without such a qualification a form of diminished responsibility, not accepted by Parliament, would be introduced. Yet it was this Court's view in McCarthy that within the limited field of provocation diminished responsibility might be seen as "the inevitable and deliberate effect" of s169. The question remains, however, whether this Court was thereby referring to a characteristic involving a generally reduced power of self control or to a characteristic increasing the gravity of provocation of a particular kind.
Further passages in the judgment in McCarthy must be examined to obtain guidance on this crucial issue. Towards the end of the discussion, the Court said:
A racial characteristic of the accused, his or her age or sex, mental deficiency, or a tendency to excessive emotionalism as a result of brain injury are, for the purposes of s.169(2)(a), examples of characteristics of the offender to be attributed to the hypothetical person. In a case where any of them apply, the ordinary power of self-control falls to be assessed on the assumption that the person has the same characteristics.

This passage appears to make the point that the hypothetical person must still be treated as having the power of self control of an ordinary person, ie. not a generally reduced power of self control; whereas the reaction of the hypothetical person to the provocation in question must be assessed in the light of the characteristic. This seems to me to support approach (1) rather than approach (2).

The McCarthy Court then went on to say:
The question under the paragraph is whether a person with the ordinary power of self-control would in the circumstances have retained self-control notwithstanding such characteristics. It can be a difficult question, like others which are left to the common sense of juries, but we cannot avoid thinking that the difficulty is unjustifiably aggravated by the suggestion that provocation must be 'directed at' a particular characteristic. We evidently share with the jury at the first trial of this case difficulty in comprehending or applying that suggestion.

The question to which the Court was referring arises only if the provocation is insufficient to deprive an ordinary person of the power of self control. The accused is saying to the jury that even if this provocation was insufficient to deprive a person with ordinary powers of self control of their self control, it was sufficient to deprive me of my power of self control because of my characteristic. If what is asserted is a characteristic lowering the accused's power of self control generally, the accused is effectively saying to the jury, I have less self control than an ordinary person and my reaction to any provocation must be assessed accordingly.

To ascribe that consequence of the asserted characteristic to the hypothetical person directly contradicts the statutory requirement that the hypothetical person be taken as having the power of self control of an ordinary person. The only possible way under the statute in which this ordinary power of self control can be modified is if the provocation has some relationship to the characteristic which allows the accused to say: this provocation was graver for me with this characteristic than it would have been for a person without the characteristic, not because I have generally lowered self control, but because of the nature of the provocation for me with my characteristic. Therefore says the accused, with my characteristic and the resulting gravity of the provocation, even ascribing to me as you must the power of self control of an ordinary person, the provocation I received was sufficient to deprive me of my self control. While as was said in McCarthy, the concept of the provocation having to be directed at the characteristic may be thought unhelpful, the statute inevitably requires there to be a sufficient relationship between the characteristic and the provocation. A characteristic which produces only a general lowering of the power of self control is not enough, unless there is in addition a more specific connection between the provocation and the characteristic.
When this Court said that the provocation did not have to be directed at the characteristic, I do not consider it was indirectly allowing a characteristic to operate if it simply went to general lack of self control. I say that notwithstanding this Court's reference to "mental deficiency" and "a tendency to excessive emotionalism" as qualifying characteristics. The passage containing that observation must be reconciled with the later passage in which the Court said that the hypothetical person was to be endowed with the accused's brain damage and any personality consequences it might have "except as to the power of self control". To read what this Court said in McCarthy in any other way would amount to an inversion of the statutory language. The section says having the power of self control of an ordinary person but otherwise having the characteristics of the offender. It does not say having the characteristics of the offender but otherwise having the power of self control of an ordinary person. The statutory words cannot be construed in that second way and I do not consider such a construction to be the effect of what was said in McCarthy. Even if such construction were possible, it would not be right in view of the authorities for this Court to put such a construction on s169(2)(a) when the whole subject of diminished responsibility, both generally and in relation to provocation, is being studied by the Law Commission for the assistance of the legislature. What can and should be said is that the present statutory provisions are in need of early attention by Parliament. The policy behind any amended provision is of course for Parliament. Whatever approach is adopted its expression must be easier of understanding and application than the present section.

Campbell's case

It is desirable at this point to mention the more recent decision of this Court in R v Campbell (1996) 14 CRNZ 117 (Eichelbaum CJ, Thomas and Heron JJ). That case was concerned essentially with the question of proportionality. Certain observations were, however, made in the judgment about provocation generally. These should be examined. In discussing the background to the proportionality issue, the Court said that central to the issue of provocation in historical terms was the effect the provocation would have had upon "a reasonable man". The Court observed that the same concept "with refinements" is now enshrined in, and made a separate issue by, s169(2)(a). The public policy underlying the "reasonable man" test was said to be a desire to reduce the incidence of fatal violence by preventing a person from relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control. The relationship between the gravity of the provocation and the accused's response to it has always been a crucial factor, as Lord Diplock said in R v Camplin [1978] AC 705, 716.
The Campbell Court next referred to McGregor and to Sir Francis Adams' criticism of the statement in McGregor that:
The offender must be presumed to possess in general the power of self control of the ordinary man, save in so far as his power of self control is weakened because of some particular characteristic possessed by him.

Sir Francis' criticism was based on the view that this passage (not directly addressed in McCarthy) appeared to give the words "but otherwise" no force whatever. The Campbell Court described Sir Francis' analysis as being that a homicide committed under provocation results from a conflict between (a) the offender's sensitivity or susceptibility to the provocation, and (b) the offender's power of self control. In that analysis (a) is referring to sensitivity or susceptibility to the particular provocation rather than to provocation generally. Sir Francis took the view that the offender's characteristics were relevant to (a) but not to (b). In Campbell the Court endorsed that approach and adopted the observation in the current edition of Adams on Criminal Law (3rd ed, paras CA 169.10.01-03) that as a matter of literal construction this view must be correct and seemed to have been adopted in McCarthy. That observation was based on the statement in McCarthy, noted earlier, that the hypothetical person is to be endowed with the accused's characteristics except as to the power of self control, the word "except" being emphasised.

This approach, which I consider to be correct, is based on the Campbell Court's interpretation of McCarthy. It supports what I have described as approach (1) rather than approach (2). It also supports the more general reasoning which I have earlier set out. That this was the view of the Campbell Court is reinforced by its application of the principles to the facts of Campbell's case. In doing so the Court said that the self control of the hypothetical person was to be taken as that of an ordinary person, and not overlaid with the consequences flowing from possession of the characteristic. Implicitly therefore the Campbell Court was saying that the only relevance of the characteristic is to the gravity of the particular provocation to the offender. It is not relevant to the offender's general power of self control. The offender is expected to apply the self control of an ordinary person against provocation, the gravity of which is assessed bearing in mind the characteristic.
It is often said, and was said in McCarthy, that a person's age or gender are characteristics. As such they can really only operate by affecting the person's power of self control in a general way. If that view is taken then they are to be regarded as exceptions to the general rule. But in my opinion the better view is to treat age and gender as variable features of the ordinary person, and thereby relevant to the power of self control of an ordinary person. On that basis these features cause no difficulty because they are not to be treated as characteristics of the offender.

Judge and jury

It is useful now to examine the roles of Judge and jury in a case where provocation is in issue. The Judge must decide whether there is sufficient evidence to leave provocation to the jury. In a case not involving an asserted characteristic this task requires the Judge to decide first, whether there is evidence of conduct capable of amounting to provocation causing loss of self control; and second, whether the provocative conduct is such that it might as a reasonable possibility have deprived an ordinary person of self control. If there is evidence upon which the jury could answer both of these questions favourably to the accused, the defence should be left to the jury. They must then consider whether there was provocation causing loss of self control and whether the provocation was sufficient to deprive an ordinary person of self control. That decision must of course be made on the basis that the Crown has the onus of negating the relevant factors.
In a case involving an asserted characteristic, the Judge must decide whether there is sufficient evidence of a qualifying characteristic to entitle the accused to have a defence based on that characteristic considered by the jury. That question is really two questions: first, whether there is sufficient evidence of a characteristic; and second, whether the asserted characteristic is a qualifying one in terms of the legal principles discussed above. If the Judge has decided that the asserted characteristic qualifies, the jury must proceed on that basis. They do not have to consider that issue but they must of course consider any factual issues as to the existence of provocation, loss of self control and presence of the characteristic. Crucially they must consider the question of the sufficiency of the provocation to deprive the hypothetical person envisaged by s169(2)(a) of the power of self control. Essentially at all stages the Judge has to decide whether as a matter of evidence and law the jury could find for the accused; the jury decides whether they should find for the accused.

Directions

As was said in McCarthy, it will usually be convenient to invite the jury to consider first the wholly subjective question whether the accused did lose the power of self control. The onus is of course on the Crown to prove that the accused did not. The advantage of this point being addressed first is that if the jury are satisfied the accused did not lose the power of self control, the second question potentially involving the accused's characteristics does not have to be addressed. If the second question arises the Judge will already have ruled that there is evidence of provocation, either of such a kind as was sufficient to deprive a person of ordinary self control, of the power of self control, or of such a kind as is sufficient to deprive the hypothetical person of the power of self control. In the former and comparatively simpler case not involving any characteristic, the jury simply has to consider the provocation, if established, from the point of view of a person of ordinary self control. Was that provocation sufficient to deprive such a person of the power of self control.

In a case involving an asserted characteristic, the directions of necessity have to be much more complicated but may usefully be prefaced by the point that if the jury considers that the provocation, without any reference to the accused's characteristic, was sufficient to deprive a person of ordinary self control, of the power of self control, the defence will succeed without any reference to the asserted characteristic. If the Crown establishes that the provocation was not sufficient to do this, the jury will have to tackle the question of characteristics. In such a case a direction along the following lines accords with the section and may be found helpful.

Step (1)Does the jury find the accused has the asserted characteristic? Whether the asserted characteristic is a qualifying characteristic will already have been decided by the Judge in favour of the accused. The jury will not therefore need to be concerned with that issue. The Judge will, nevertheless, have to explain to the jury exactly what the asserted characteristic is so that the jury will know what they are looking for when they decide whether the accused had it. As the onus is on the Crown the accused must be treated as possessing the asserted characteristic, unless the Crown has proved that this is not so. If the accused's case depends on an asserted characteristic and it is negated by the Crown the defence of provocation must fail.
Step (2)If the jury finds the accused does possess the asserted characteristic, the jury must construct in their minds a hypothetical person having the power of self control of an ordinary person but otherwise having the accused's characteristic.
Step (3)Having done that the jury must consider whether the provocation was of sufficient gravity to deprive such hypothetical person of the power of self control. It is desirable to add that this means the provocation must have been of sufficient gravity to deprive of their self control a person with the accused's characteristic but who is expected to display the power of self control of an ordinary person. To assist the jury further, it is helpful to say that this requires the jury to assess the gravity of the provocation from the point of view of a person with the accused's characteristic. After assessing the level of gravity of the provocation in that way, the sufficiency of the provocation to deprive the hypothetical person of self control must be viewed from the standpoint of a person with the power of self control of an ordinary person. The question becomes whether such a person ought to have been able to resist provocation of that level of gravity. A metaphorical description of what this involves would be to say that provocation, which for an ordinary person is at level 5 of gravity, might be at level 7 for the accused because of the characteristic. The accused must show the self control of an ordinary person but against provocation at level 7, not level 5. The sufficiency of the provocation to cause loss of self control must be assessed on that basis.
Step (4)The Judge should remind the jury that on the sufficiency question, the accused is entitled to a favourable answer, unless the Crown has satisfied them that the provocation was not sufficient to deprive the hypothetical person of the power of self control.

Observations

The mental gymnastics involved in this exercise simply serve to underline the desirability of achieving conceptual simplification of the law in this area. A humane way of approaching that task and one which is consistent with the essentially subjective approach which the criminal law takes to mental states, would be to allow as a characteristic any mental state which generally reduces the accused's power of self control, provided that state was neither self induced such as intoxication, nor was simply a personality trait like short temper. While such conditions as these are in a sense mental states, they should not qualify as a matter of policy. In order to qualify, the mental state should amount to a professionally recognised form of mental disease, disability or disorder. Such an approach could be seen as acceptance of diminished responsibility in circumstances of provocation. A general defence of diminished responsibility in wider circumstances would not necessarily follow. This degree of diminished responsibility in the face of provocation would still pose problems for juries, but no greater than those they face daily in having to consider the mental states of all sorts and conditions of people.

This case

It is inherent in what I have written that if the appellant's asserted mental characteristic demonstrated only a generally reduced power of self control in the face of any kind of provocation, it was not a qualifying characteristic. On that premise the defence of provocation should not have been left to the jury on any basis relying upon the appellant's characteristics. At the retrial it will still of course be open to the appellant to contend that the defence is available without any suggestion of characteristics or indeed if a qualifying characteristic can be shown. In the former case the appellant will have to demonstrate that there is evidence on which the jury could hold it reasonably possible that such provocation they find to have existed was sufficient to deprive an ordinary person of self control. If that is in issue the Judge will have to rule on that evidentiary question.
As far as the first trial Judge's directions to the jury are concerned, the crucial passage is this:
Further, these mental characteristics can only be taken into account in assessing the accused's sensitivity or susceptibility to the particular provocation. These special circumstances apart, she is expected to have the powers of self-control of an ordinary person.
So the second consideration is what are the powers of self-control of an ordinary person. You decide that as twelve ordinary reasonable people. Consider all the evidence. Decide whether the accused was on a short fuse because of her mental characteristics.

With respect I am of the view that this direction was partly correct as far as it went but did not give the jury sufficient help in this very difficult area. It did not make the point about the gravity of the provocation to the accused being assessed in the light of the accused's characteristic (assuming there was a qualifying characteristic). The reference to whether the accused was on a short fuse because of her mental characteristics was potentially misleading. If the general sequence of thought set out earlier is followed, I hope the difficulties for trial Judges in this area will be somewhat reduced.

Solicitors
Crown Law Office, Wellington

[2000] NZCA 273

13 April 2000