The Queen v Timoti
[2004] NZCA 200
•25 August 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA3/00
THE QUEEN
v
AERENGAROA TIMOTI
Hearing:25-26 February 2004
Coram:Anderson P
Glazebrook J
William Young JAppearances: G J King and A Shaw for Appellant
J C Pike and F E Guy for Crown
Judgment:25 August 2004
JUDGMENT OF THE COURT DELIVERED BY ANDERSON P
Nature of the appeal
[1] This is an appeal against conviction for murder, the victim having died in a house fire lit by the appellant. The appeal was originally dealt with by this Court in March 2000 but a rehearing was granted following the decision of the Judicial Committee of the Privy Council in R v Taito & Ors [2003] 3 NZLR 577. The rehearing was scheduled for 25 March 2003 but was adjourned to enable counsel to prepare submissions on the interrelationship of s 167(d) and s 169 Crimes Act 1961.
[2] The points taken for the appellant are mainly concerned with aspects of the summing up, particularly in relation to provocation. But it is also asserted that the guilty verdict on the charge of murder was unreasonable having regard to acquittals on two counts of attempted murder of the appellant’s mother and stepfather, who were also resident in the house where the fatal fire occurred. The Crown takes issue with the appellant’s criticisms and counters that if there were any deficiencies in the Judge’s directions as to provocation, nevertheless no miscarriage of justice was thereby occasioned because, as a matter of law, the defence of provocation could not lie where, as the Crown submits must have been the case, the murderous intent found by the jury to have been proved was of the nature identified in s 167(d) Crimes Act. That provision defines culpable homicide as murder if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.
Factual context
[3] The events with which the appeal is concerned took place in 1998, on the evening of 23 January and early morning of 24 January. The appellant, then aged 23, was living with members of his family in a house in Mt Roskill, Auckland. These were his mother Mrs Maru Timoti, her husband Mr Fred Wuatai, who is the appellant’s stepfather, Tiamarama, the infant daughter of that union, and Valentina the appellant’s two year old daughter who had been borne by Mr Wuatai’s older daughter, the appellant’s stepsister, Sharina. Mrs Timoti, Mr Wuatai and Tiamarama customarily slept in the main bedroom. The appellant used to sleep in another bedroom, with Valentina. On the night in question two other relatives were sleeping in the lounge. They were Mr Samuela Marukore and the victim, Mr Tereoro Ruarau.
[4] The relationship between the appellant and other members of the family, and the evidence relating to events proximate to the fatal fire, were described by the trial Judge, Chambers J, in the course of his ruling that provocation could go to the jury. He said:
[9] I have considered each limb of s 169(2) separately. As to (a), there is evidence from which a jury could conclude, as a reasonable possibility, that the acts of Fred Wuatai and Maru Timoti on the night of 23-24 January 1999, were, in the circumstances, sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the accused, of the power of self-control. There is evidence – I do not detail it – of long-standing family tensions between the accused on the one hand and his mother and her partner, Mr Wuatai, on the other. Those tensions were exacerbated when the accused formed a relationship with Mr Wuatai’s daughter, Sharina, which relationship resulted in the birth of a daughter, Valentina, when Sharina was still aged only 16 years. There is evidence that the accused’s mother and Mr Wuatai strongly disapproved of the relationship between their offspring, and in particular were aghast when Sharina gave birth at such a young age. Other causes of tension related to money. The accused’s mother and Mr Wuatai did not consider that the accused was properly contributing to the household budget while he was living with them. Another major source of friction within the household was the upbringing of Valentina. There was a struggle for custody and control of her and her upbringing between the accused on the one hand and his mother and Mr Wuatai (Valentina’s grandparents) on the other. (Valentina’s mother seems largely to have been out of the picture so far as primary care-giver for Valentina was concerned.)
[10] These tensions reached boiling point on the evening of 23 January this year. Mr Wuatai returned late from a social cricket game. There is evidence that he had been drinking excessively and was intoxicated. When he got home, he found that the telephone in the kitchen was broken. He inquired as to how it had been broken and was told that it was done by the accused. There is evidence that he then flew into a rage and went into the accused’s bedroom. The accused was in there with his daughter Valentina. Some evidence would suggest the accused was asleep; other evidence would suggest that he was awake. What does appear clear is that Mr Wuatai challenged the accused about the broken telephone and then demanded that he leave the house immediately, notwithstanding that it was the middle of the night and the accused had nowhere to go. There was fighting between Mr Wuatai and the accused. There is evidence that that fighting was initiated by Mr Wuatai. There is also evidence that Mr Wuatai insisted on taking Valentina and insisted that she would not be going with the accused. The accused’s mother appears to have sided with Mr Wuatai in this dispute, including with respect to his demand that the accused leave the house immediately.
[11] The fighting became so threatening that the accused tried to ring the police. There is evidence that Mr Wuatai physically prevented him from ringing the police, and dragged him away from the telephone while he was screaming for the police to help. In the end the accused’s mother rang the police. The police arrived. It is clear from the police officers’ evidence that Mr Wuatai was warned in respect of his assault on the accused. The accused was warned in respect of the damage he had done to the telephone. The police quietened matters down. By this stage it was after 1 am on the Sunday, but matters quickly flared the moment the police left the house. There was effectively a physical tug of war between the accused and Mr Wuatai over Valentina. Mr Wuatai was insisting that Valentina was to sleep in his bedroom. The accused went out and saw the police about this. They were still in their cars outside. The police returned and told Mr Wuatai that the accused, as Valentina’s father, had the right of control over Valentina. The police then left again.
[12] There is evidence of further provocation after that time. There is evidence that the accused’s mother and Mr Wuatai continued to mock the accused, saying that in any event he would be gone tomorrow. There is also some evidence of a rather unclear kind that the accused’s mother and Mr Wuatai also indicated to him that they had others ready to take his room. In addition, there is evidence of Mr Wuatai threatening the accused that if he took Valentina with him, he, Mr Wuatai, would kill the accused.
[13] Much of the above abbreviated account is disputed, but there can be no doubt that the above account is a version open to the jury.
[5] After the altercations described above, Mrs Timoti and Mr Wuatai retired to their bedroom and locked the door. Mr Marukore and Mr Ruarau went to sleep in the lounge. The appellant went to his room and began to fret and to brood over what had happened. Aspects of his personality made him more sensitive to being provoked by what had occurred than the ordinary person, as will be seen by reference to psychiatric evidence discussed later in this judgment. He was very resentful that, as it seemed to him, his mother had sided with Mr Wuatai and had not intervened in the attack on himself. He was very distressed about having to leave the home and anxious about whether he would be able to take his daughter with him. He decided that he would, in his words, “get back” at his mother and stepfather.
[6] At about 5 a.m. on 24 January the appellant packed his personal effects in bags and put them outside. He took up a five litre canister of petrol and poured the contents along the hallway, up to the door of the bedroom where his mother, Mr Wuatai and Tiamarama were asleep, and poured petrol also into his own bedroom. There was a household hose attached to a tap outside, and to prevent this being used against the fire he disconnected it and threw it away. The appellant made a lighting torch out of a stick with cloth wrapping and, picking up his daughter, he walked out of the house, setting fire to the petrol trail as he exited. The house was engulfed in flames.
[7] Mrs Timoti and Mr Wuatai and Tiamarama woke and managed to escape through the bedroom window. Mr Marukore also woke and found his exit from the lounge blocked by smoke and flames. He tried to wake the deceased but was forced to flee for his life by leaping through a window. Mr Ruarau succumbed before he could escape. He died of smoke asphyxiation and his body was burnt beyond recognition.
[8] The appellant was charged with four counts; arson, attempting to murder Fred Wuatai, attempting to murder Maru Timoti and murdering Tereoro Ruarau. The appellant pleaded guilty to arson. He was acquitted by the jury on both counts of attempted murder and convicted on the count of murder.
[9] It has been plain, at least since R v Murphy [1969] NZLR 959, that for a person to be convicted of attempted murder the Crown must establish an actual intent to kill. It is not sufficient for the Crown to establish an intention to cause bodily injury that is known to the offender to be likely to cause death with the offender being reckless whether death ensues or not. Therefore, because attempted murder requires a specific intent to kill and there can be no tenable suggestion that the appellant had a specific intent to kill the deceased, the acquittals on the counts of attempted murder mean that the jury must have been satisfied beyond reasonable doubt that the murderous intent in respect of the deceased was of the constructive nature defined by s 167(c) Crimes Act or s 167(d). We agree with counsel for both the appellant and the Crown that s 167(d) is the only rational possibility on the facts of the case. It is convenient to set out the whole of s 167.
167 Murder defined
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
Psychiatric evidence and characteristics
[10] The only evidence given by the defence at trial was that of Dr D G Chaplow, a highly qualified and greatly respected forensic psychiatrist. Following examinations of the appellant Dr Chaplow formed the opinion that the appellant evidenced some traits of personality disorder. He testified:
He has traits characteristic of anti-social personality, a narcissistic personality and paranoid personality and all of these personalities do share similar characteristics and traits and I felt the traits he most exhibited were in the area of paranoid personality which describes a rather sensitive and rather defensive person who is on the look out for offence for rejection and he is rather rigid in character.
What is such a person’s attitude likely to be towards others?
Cautious so that they don’t engage easily, they don’t trust easily and when they take offence it is usually in a grand manner.
In terms of these traits did Mr Timoti appear to be sensitised around any particular area? I felt that one theme that came through particularly the examination was his sense of rejection from childhood which was rekindled prior to the fire when he was basically being ordered to leave home.
[11] The trial Judge’s references to Dr Chaplow’s evidence, in the course of summing up, included the following observation.
It will be for you to assess whether Dr Chaplow’s evidence satisfies you whether the accused may have a psychiatric disorder which rendered him particularly susceptible to provocation of the kind alleged to have occurred. It is for you to decide whether the traits contended for here are real characteristics or whether they are just the sort of usual personality traits any ordinary New Zealander might reveal. It is necessary to apply to your assessment of the provocation in this case, the test of whether it was such as to deprive the ordinary person, but otherwise having the characteristics of the accused, if you find he has special characteristics, of the power of self-control to the extent which occurred. You need to examine what the accused’s mother and Mr Wuatai did or said in light of that test.
[12] We note that in the course of their deliberations the jury asked for the whole of Dr Chaplow’s evidence to be read to them, which the Judge did.
[13] Dr Chaplow was engaged to re-examine the appellant for the purposes of this appeal and counsel sought leave to adduce the later opinion in support of the appeal. But it takes the matter little further than the evidence he gave at trial in terms of an opinion. After setting out background information and discussing the nature of personality Dr Chaplow says in his more recent opinion:
Applying the above to Timoti, his history indicates his inability from an early age to relate adaptively to others. He fought with others, was expelled from schools at an early age, had difficulty holding down a job and sustaining long-term relationships. His enduring characteristics appeared to be superciliousness, suspiciousness, grandiosity alternating with contempt for others, and aloofness. He appeared to be rarely contented, repeatedly checks and questions others’ motives and appears to react to actual or perceived slights with violence. He behaved in character at the most recent interview when he was very vigilant lest correctional officers overhear our conversation.
…
Finally; does Timoti have personality disordered traits or disorder? It is my opinion that he does.
[14] Psychiatric evidence was led for at least two purposes. The first was to raise doubts about the appellant’s ability to prognosticate the fatal consequences of setting the fire, but we see nothing in it to suggest any reduction of normal ability in this respect. The second was to show a relevant characteristic, for the purposes of a provocation defence, in reliance on s 169 Crimes Act which provides as follows:
169 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if—
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.
(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.
[15] The relevance of Dr Chaplow’s evidence was expressed by Chambers J in summing up as follows:
For the accused, it is contended that the characteristic you should take into account is that he suffers from a psychiatric disorder known as paranoid personality disorder. In this respect, the accused relies entirely on the evidence of Dr Chaplow. You will have to make an assessment of Dr Chaplow’s evidence. From his evidence, it would seem the effect of having this disorder is that the person who has it does not adapt easily to stress, is cautious, does not engage easily, does not trust easily, bears grudges, and when they take offence they do so in a grand manner. It would also seem from Dr Chaplow’s evidence, if you accept it, only a tiny percentage of the population has this particular psychiatric disorder. If the accused has it, you may well consider it a characteristic which marks him out and differentiates him from the ordinary person.
[16] Present counsel for the appellant, who did not appear at trial, submitted to us that a particularly relevant characteristic was hypersensitivity to rejection. The proposition was conveniently expressed by Mr King in these terms:
The personality disorder involving hypersensitivity to rejection is the relevant characteristic with which there is a sufficient connection to the provocation of rejection evidenced by physical and verbal attacks and expulsion from the home.
Is provocation available as a defence when s 167(d) applies?
[17] We will address later in this judgment other criticisms of the summing up in relation to provocation but the material examined so far is sufficient to show how the matter of provocation was put in issue and to lead us, conveniently, to the Crown’s threshold submission that the defence of provocation is not available as a matter of law to the appellant because, as we summarise counsel’s submissions:
(1)In view of the jury’s acquittal on the two counts of attempted murder the appellant must be taken not to have formed a specific intent to kill anyone; and
(2)The guilty verdict in respect of murder must be taken to be founded on s167(d) Crimes Act; and
(3)Therefore the murder verdict is not founded on a specific intent to kill; and
(4)The conceptual nature of the defence of provocation, historically, is not that it negates mens rea but that it excuses the formation of an intent to kill.
[18] Mr Pike submitted that the starting point for considering whether s 167(d) murder could ever be subject to the palliative defence of provocation lies in an amalgam of common law and statutory considerations. In his submission, provocation is a common law construct codified by successive criminal codes in New Zealand. From its origins in the early 17th century to deal with cases where malice aforethought ought not be inferred because a killing was an immediate response to an act of violence from the deceased, down to its present day scope and exemplifications, the core concept has been a loss of self-control induced by the victim who has been intentionally killed. In a s 167(d) situation there is no intent to kill, even in the extended bodily injury/reckless sense. Further, the fact of a person doing an act, for an unlawful object, knowing the act is likely to cause death even though desiring that the offender’s object should be effective without hurting anyone, is quite inconsistent with loss of self-control, a state in which an accused is no longer master of his mind. That is, s 167(d) envisages a calculated course of conduct in pursuance of an unlawful object, and that is incompatible with the hot-blooded loss of self-control contemplated by the concept of provocation as a defence. He submitted also that the underlying policy of s 167(d) should not be watered down by a provocation defence, such policy being that persons who act unlawfully in circumstances where death is known to be a likely product of the unlawful act are to be held, for reasons of deterrence and denunciation, to do so on pain of conviction for murder.
[19] We are not persuaded by Mr Pike’s submissions that as a matter of law provocation can never be a defence to murder where murderous intent exists in terms of s 167(d). It is no longer the case that provocation must emanate from the person killed, as s 169(6) makes plain. The terms of s 169 are broad enough to apply to any case of murder. It is of course likely to be a rare case where there would be an evidential basis justifying provocation going to a jury where the statutory equivalent of felony murder is charged. Indeed, where provocation is left to the jury in such cases the degree of deliberation in respect of the unlawful act may be such that the Crown would have little trouble in satisfying a jury that provocation is excluded. Whether it is or is not, however, is a question of fact not law.
[20] We see no adequate policy reasons for the proposition Mr Pike advanced. In elevating to murder an offence which would otherwise be manslaughter, the policy of felony murder is thereby served. The policy of provocation is to reduce to manslaughter an offence which would otherwise be murder. The two translations have different purposes and apply from different starting points. They are not mutually exclusive.
[21] Nor is there any logical reason for excluding the defence of provocation in a s 167(d) situation but allowing it for every other murderous intent envisaged by s 167. A person who is guilty under s 167(a)(b) or (c) must also be guilty under (d) and it would be a very strange result if provocation was both available and not available for the same offence.
[22] In short, we have no difficulty in concluding that provocation is available as a defence to a charge of murder founded on s 167(d). A more difficult issue arises when the person killed in such circumstances is not the person who offered the provocation. As s 169(6) makes plain, the defence is available where the offender, under provocation given by one person, kills another person by accident or mistake. That reflects developments in the common law as, for example, R v Brown (1776) Leach 148; 168 ER 177; where the offender wrongly thought that the person he killed was a member of a gang which was attacking him and a friend. There may also be cases where the offender intends to kill the provoker but inadvertently kills another innocent person, this situation being contemplated by s 167(c).
[23] But it is arguable that where an offender would be guilty of murder because, for an unlawful object, he did an act which he knew to be likely to cause death and thereby killed “any person”, the killing would not have the character of an accident or mistake because the circumstances defined by s 167(d) render the homicide an intentional killing of the person killed. Notwithstanding the force of that argument we think, however, that the correct answer is that the killing of an innocent person may still be by accident or mistake even though the mental and circumstantial context determine that as a matter of law the unintended killing is murder.
[24] This does not mean that offenders may rely on provocation by one person to excuse the killing of innocent people whom they have knowingly endangered in s 167(d) circumstances. Knowledge of the likelihood of death being caused does not exist in a vacuum or in the abstract. It must obviously relate to the circumstances in which the act is to occur, and potential victims may be a particular person or persons, or a class of persons, depending on the context. Any person or class of persons whom the offender knows to be likely to be killed cannot be the object of accident or mistake because they must have been specifically envisaged as potential victims. A bank robber, for example, who fires a warning shot at a security guard and kills a customer, must have envisaged that risk to be guilty of murder at all, and it could not therefore have been an accident or mistake in any relevant sense. The class of potential victims in that case would be anyone within the range of the shot at the time it was fired. The same reasoning would apply in a case such as the present, where, if the offender knew that setting fire to the house was likely to kill any of the known or likely occupants, the killing of any one of them could not be considered an accident or mistake. Where matters would get difficult is if the person killed had been, say, a burglar hiding in one of the rooms, or a tramp sleeping rough under the house. Then, we think, it would be arguable that the killing would be an accident or mistake because such deceased would have been beyond the contemplation of the known risk to the class of the known or likely occupants.
[25] For these reasons we do not accept that the partial defence of provocation can never be invoked in s 167(d) circumstances.
[26] Nevertheless, we think that on the facts of this case the defence was untenable. If, in the present case, the appellant knew that in setting fire to the house any person was likely to be killed then he must have known that any of the known occupants were at such risk. Mr Ruarau would not then have been killed by accident or mistake. His death would have been within the murderous intent of the appellant in terms of s 167(d). Since the provocation was not in any sense attributable to Mr Ruarau, the common law’s restriction of the palliative defence, now modified of course to the extent indicated by s 169(6), would preclude its availability to the appellant.
[27] Our conclusion in [27] is fatal to the appeal to the extent that it relies on the provocation defence. We recognise that the case was not argued in exactly the way we have held it must be determined, and in deference to the submissions of counsel we will address the criticisms of the Judge’s directions on provocation. As will be seen, however, those arguments also fail to carry the appeal.
Judge’s directions on provocation
[28] Counsel submitted that Chambers J wrongly directed the jury on the relationship between provoking conduct and response and aspects of proportionality between those matters. Counsel focused on the following extract from the summing up:
A defence of provocation to a charge of murder can be valid only when the homicide has been committed in hot blood and while the accused is still in the throes of passion. In law, the provocation need not occur immediately before the killing, but the time element is of great importance. You must consider, as a weighty factor, whether the accused’s acts leading to Mr Ruarau’s death bear any proper or reasonable relationship to the sort of provocation said to have been given by the accused’s mother and Mr Wuatai. The extent of loss of self-control has to be considered, in proportion to the alleged provocation. An ordinary person – see 1.2 p.5 – means an ordinary New Zealander.
[29] Mr King submitted that the effect of the Judge’s direction was to convey to the jury that it must consider proportionality as a matter of law, but as this Court made plain in authorities such as R v Campbell (1996) 14 CRNZ 117, proportionality is not a matter of law in New Zealand. In that case, the Court said that it would have been preferable not to mention proportionality at all and that there had been a material misdirection warranting a new trial because it would have seemed to the jury that they were expected to look for a due proportion between the insult offered and the response, in the absence of which proportionality they ought reject the defence of provocation.
[30] Mr King submitted that the Judge did not make it plain that proportionality was not a matter of law. He suggested that because the Judge said in the sentence before the reference to a weighty factor that the time element was not a matter of law, the failure specifically to say that proportionality was not a matter of law would lead the jury to think that it had to take proportionality into account as a legal requirement. He submitted that the abstract emphasis on proportionality was fatal to the defence because the personality trait or disorder relied on as a characteristic induced responses which were by ordinary standards disproportionate.
[31] Counsel then went on to criticise the Judge’s direction that the time element was of great importance because, again, the relevant characteristic had elements of brooding and bearing a grudge.
[32] The next criticism is that the Judge’s directions had the effect of reversing the onus of proof in relation to a special characteristic, reliance being placed on one of about five paragraphs other than specific references to the onus of proof being on the Crown, in which the Judge dealt with characteristics. The passage relied on is in the following terms:
It will be for you to assess whether Dr Chaplow’s evidence satisfies you whether the accused may have a psychiatric disorder which rendered him particularly susceptible to provocation of the kind alleged to have occurred. It is for you to decide whether the traits contended for here are real characteristics or whether they are just the sort of usual personality traits any ordinary New Zealander might reveal. It is necessary to apply to your assessment of the provocation in this case, the test of whether it was such as to deprive the ordinary person, but otherwise having the characteristics of the accused, if you find he has special characteristics, of the power of self-control to the extent which occurred. You need to examine what the accused’s mother and Mr Wuatai did or said in light of that test.
[33] Counsel’s next submission was to the effect that Chambers J depreciated the value of Dr Chaplow’s evidence by failing to emphasise both his status as an expert and the relevance of expert testimony, particularly when it is uncontradicted by other expert evidence. Another criticism is that the Judge expressed in his directions to the jury that Dr Chaplow’s opinion was based on what the appellant had told him at the two consultations and the opinion was therefore dependent in part on the truth of what he was being told but the accused had elected not to give evidence. This is another submission based on a passage taken out of context and we think it appropriate that the whole context should be reproduced.
The test is that of the power of self-control of an ordinary person in the same circumstances. In other words, once you have sorted out in your minds what happened that night, how would you expect the ordinary person to react in the situation which actually occurred? Regard is to be had, however, to any particular characteristics possessed by the accused which may be related to the provocation. So you start with an ordinary New Zealander as a hypothetical person, with the ordinary power of self-control, and then add to that the special characteristics of the accused and their consequences, except as they may affect his power of self-control, and then place him in the circumstances of the crime in the light of the provocation, as you find it, by his mother and Mr Wuatai before the crime to which he then reacted.
It is not however, a characteristic for deciding whether murder should be reduced to manslaughter that the accused happened to be quick tempered or irritable or excitable. Those are characteristics likely to be possessed by anyone, and the ordinary person is supposed to control his reactions, even if he is disposed to be quick tempered.
A characteristic, as referred to in the third line p.5 of the handout, may apply not only to physical qualities, but also to mental qualities and attributes such as colour, race and creed. In this case, the only characteristic with which you are concerned is a particular mental quality the accused is alleged to have had and about which I am going to address you shortly. But note that the characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary person. It must be sufficiently permanent to warrant it being regarded as part of that individual’s character or personality. A self-induced temporary state of partial intoxication would not amount to a characteristic, just as temporary states of mind such as depression or excitability or a tendency to lose one’s temper easily, would not be of sufficient permanence to be a characteristic.
For the accused, it is contended that the characteristic you should take into account is that he suffers from a psychiatric disorder known as paranoid personality disorder. In this respect, the accused relies entirely on the evidence of Dr Chaplow. You will have to make an assessment of Dr Chaplow’s evidence. From his evidence, it would seem the effect of having this disorder is that the person who has it does not adapt easily to stress, is cautious, does not engage easily, does not trust easily, bears grudges, and when they take offence they do so in a grand manner. It would also seem from Dr Chaplow’s evidence, if you accept it, only a tiny percentage of the population has this particular psychiatric disorder. If the accused has it, you may well consider it a characteristic which marks him out and differentiates him from the ordinary person.
There are some points which you should bear in mind when considering Dr Chaplow’s evidence. The first is that he is not able to say that in his opinion the accused has this disorder. What he can say is that he has detected indicia or traits indicative of the disorder, and the disorder is the most likely explanation of these traits he has detected. But that is as far as he can go.
The second point I must make is that Dr Chaplow’s opinion was based in part on what the accused told him at two consultations. It is at least in part, Dr Chaplow says, dependent on what he was told being true. Here, the accused has elected not to give evidence. The Crown has not been able to test whether what the accused told Dr Chaplow is right or not. Dr Chaplow’s opinion is at least in part dependent on the truth of what the accused told him. We do not know what the accused told him, and accordingly you may consider that the opinion is worth less weight because of that. It is a matter for you.
I digress one moment because it would be unfair to the accused to leave the question of his not giving evidence on the basis just mentioned. I stress to you, that an accused is entitled to sit back and see if the prosecution can prove its case. Where as here he has done so, that means you have not had the opportunity of hearing first hand the accused’s account of events that occurred, and more particularly of hearing directly from him on oath in the witness box. The only account is what he said to the police officer on the videotape. You have not had the benefit of hearing his account tested in cross-examination. But I should make it perfectly plain to you that not giving evidence does not itself prove anything. It does not add to the evidence against the accused. One thing you must not assume is that the accused is guilty because he has not gone into the witness box. I should also stress what Mr Niven said to you, namely, that while the accused has elected not to give evidence, he nonetheless did very shortly after the incident, indeed on the very day of the incident, give an account, Mr Niven says a complete account, of what he did leading up to and after the fire. That account, Mr Niven says, has been proved accurate by other evidence called by the Crown. This is not a case, he says, where the accused has just kept quiet as he was entitled to. He was, Mr Niven says, very frank in that interview. Well, that is a matter for you to weigh up.
[34] We find no merit in counsel’s criticisms of the way in which the Judge dealt with Dr Chaplow’s evidence. It was not necessary for the Judge to boost the witness’ credentials. Nor was there anything inappropriate in his treatment of the matters going to the weight to be placed on the opinion.
[35] What may be regarded as perhaps the most substantial point made on behalf of the appellant has the character of a conclusion. It is that the jury was not directed, overall, in a way which adequately explained and allowed them to apply the law relating to provocation in the light of the facts of the case before them. The proposition was not put in quite that way by counsel for the appellant but we think it appropriate to draw the discrete threads of counsel’s criticisms of the way in which the jury was directed on provocation into that substantial, conclusory proposition.
[36] Finally, in relation to provocation, Mr King invited the Court to revisit the concept of provocation as this Court did in R v Rongonui [2000] 2 NZLR 385, and to adopt the reasoning of the minority, Elias CJ and Thomas J.
Process based arguments for appellant
[37] As well as the challenges to the verdict based on the law as to provocation, the appellant, by counsel, took some procedural points which can not only be conveniently addressed at this stage of the judgment but conveniently disposed of as wanting in merit. The first is that the verdicts of acquittal on attempted murder and the verdict of guilt on the murder count were inconsistent, thereby demonstrating that the guilty verdict was unreasonable or could not be supported having regard to the evidence. As will be apparent from the matters already discussed in this judgment, the jury’s verdicts are rationally explicable on the basis that the acquittals were founded on a failure of proof of the specific intent to kill that offence requires and the verdict of guilty on the murder count was founded, as it could properly be, on constructive murderous intent in terms of s 167 (d) of the Crimes Act.
[38] Counsel also submitted that, in the context of the trial, the appellant was prejudiced by the Crown’s being permitted to present its case for murder on a number of different scenarios, that is, on the basis of any of the four types of murderous intent defined in s 167. We reject this proposition as an unconvincing make-weight. There is no suggestion of any complaint by the experienced criminal counsel who appeared at trial. Nor is there any proper basis upon which the Crown could have been prevented from putting its case on a number of tenable bases.
[39] A further process argument is that a miscarriage of justice was occasioned by the admission of prejudicial evidence, having little if any probative value, and that the impact of which was not ameliorated by adequate judicial directions as to how such evidence ought be evaluated.
[40] The Crown had led evidence from a family friend, Mr Moukite Etita who said that about two and a half months before the fire he was talking to the appellant about his mother and father and the appellant had said, “Yes, one day I will beat them up, I will kill them”.
[41] It was submitted that this evidence was led by the Crown to establish intent but in counsel’s submission it was too far removed from the relevant incident to be of probative value and that in any event the jury should have been told to disregard this as far as it went merely to previous bad conduct.
[42] Evidence was also led by the Crown from Mrs Timoti that in 1996 the appellant had stabbed her with a knife causing injuries which required stitches. This evidence was the subject of a pre-trial application for exclusion. That was heard by Randerson J who held it to be admissible in that it demonstrated a deep-seated animosity between the appellant and his mother and indicated that the appellant was capable of an extreme over-reaction to relatively trivial incidents. Randerson J also held it to be relevant “to rebut the anticipated defence to the attempted murder and murder charges which is that the accused lit the fire in a fit of anger and did not mean to kill.”
[43] Counsel submitted that enmity was otherwise apparent. And in relation to possible murderous intent at the time of the fire, an incident which preceded the fire by two and a half years was not sufficiently recent to be probative in that respect. On the other hand, the evidence was very prejudicial and no attempt was made by the Judge to redress the prejudice. In counsel’s submission:
The simple fact is that the appellant was convicted of murder by a jury who heard these terrible things about his past conduct. Whether they acquitted him of other lesser charges or not is irrelevant. It is submitted that in convicting the appellant of murder the jury may well have been influenced by the evidence of his past bad conduct.
[44] The Crown’s neat and persuasive response to the complaints about the admission of this evidence is that it is simply illogical for the appellant to suggest that the jury may have irrationally used irrelevant evidence to convict him of murder when, obviously, it had regarded the same evidence as unpersuasive on the only charges to which it was relevant, namely the attempted murder charges.
[45] Mr Etita’s evidence was recent and relevant enough to be probative and admissible. Mrs Timoti’s evidence of the earlier incident was not such that we would necessarily have regarded it as admissible if we were seized of it pre-trial, but we are quite unpersuaded that in the context of the trial as a whole, and in view of the acquittals for attempted murder, it has occasioned a miscarriage of justice.
Should Rongonui be revisited?
[46] R v Rongonui is a complex of learned and closely reasoned judgments which diverge on a crucial issue. That is whether, in terms of Crimes Act s 169, “the power of self-control of an ordinary person” is a mandatory, objective imputation to an accused, or whether it is an objective reference which may then be subjectively attenuated or qualified by an accused’s characteristic or characteristics. The practical relevance of the distinction is found in cases where an accused has a psychiatric or psychological condition, not amounting to legal insanity, which reduces that person’s ability to control his or her behaviour, with the result that such person may be provoked to murder when a person with a so called ordinary power of self-control would not have been.
[47] The fact that the eminent jurists who comprised the Court in Rongonui, and those who formed benches in the various New Zealand cases mentioned in the Rongonui judgments, should be so eruditely at odds, testifies once more to the wholly unsatisfactory nature of the statutory concept of provocation. How juries are meant to acquire a practical comprehension of the hypothetical constructs on which they might be directed is a matter of speculation. But in the trial experience of the present Bench, verdicts are more likely to have been reached by the application of common-sense, community values and a wise and merciful appreciation that a case which would otherwise be one of murder, may nevertheless have extenuating circumstances or a diminution of responsibility which, as a matter of justice, warrant a verdict of manslaughter.
[48] The conceptual difficulties invoked by s 169, in dichotomising the so-called power of self-control of an ordinary person and the characteristics of the offender in a single hypothetical persona, include the notion of some innate, independent and inherent power in a person to control conduct in the face of emotional stimuli. What is conveniently called a power of self-control was in fact the amalgam of all personal inhibitions upon or encouragements to conduct. Nevertheless, the phrase is indicative of expected, normative responses to emotional stimuli.
[49] All of this is by the way in the present case, because the characteristic relied upon relates to matters other than the power of self-control. It was expressed by Mr King as hypersensitivity to rejection. So in terms of R v Rongonui, the impact of the provocation had to be assessed in light of that relevant characteristic but it did not bear directly on the power of self-control. The minority views in R v Rongonui are not therefore of real relevance in this case.
[50] In any event, this Court would not be disposed to overrule a very recent decision of this Court, particularly one reached after extensive argument and consideration.
Was the defence of provocation adequately dealt with?
[51] The defence of provocation sprang from a recognition that a murderer may have been so provoked to anger by the victim as to make it just that the penalty of death should not be exacted. But the provocation must have been such that an ordinary person would have been driven to immediate violence. This approach would not allow for premeditation and planning, in view of the requirements, noted by counsel for the Crown, that the response be upon the sudden and without malice aforethought, done in hot blood.
[52] In more recent times it has been recognised that the heat of anger may be more enduring than fleeting moments, and that provocation may be sustained, so that the response is a pervasive anger that smoulders from the repetition of affronts until fanned into flame by an incident which, taken out of context, would not excuse the response.
[53] Of course, a distinction must still be drawn between, on the one hand, a violent response under the spur of provocation, and on the other hand, a violent revenge for an insult. In some cases it might be difficult to determine which of those categories the criminal response falls into, because there may be elements of both. Or indeed, there may be no real causative connection between the offending conduct and anything said or done by the victim. These difficulties are met in a practical way by the legislative stipulation in s 169(4) that the issues of the quality of provocation and the actual impact of it are questions of fact.
[54] What a jury has to consider is first, the provocative impact on the emotions of an accused, assessing it with regard to an ordinary person having any relevant characteristics of the accused. A relevant characteristic will be one which exacerbates the effect of the provoker’s conduct compared with the likely effect on an ordinary person. Second, given the particular emotional impact, the jury must inquire whether an ordinary person would be deprived of the power of self-control. If the answer is, beyond reasonable doubt, in the negative, then the defence must be rejected. But if it is reasonably possible then, third, the jury must consider whether the provocation , as a reasonable possibility, may in fact have deprived the accused of the power of self-control.
[55] At each of these steps a jury will be examining causes and consequences as questions of fact. Ideas of proportionality may perhaps inform an inquiry whether the conduct of the accused had the character of a violent response under the spur of provocation or of something else, such as a violent revenge for the insult or perceived insult, or done with some ulterior purpose. Or a seemingly disproportionate response to provocation may be evidence of an actual loss of self-control. It will also, of course, inform the question whether absent any relevant characteristic, the provocation was sufficient to overcome the self-control of an ordinary person. But a reference to proportionality will generally be unhelpful unless its relevance to the issues in the case is identified. This is because of the risk that a jury might think that, as a matter of law, there must be a proper or reasonable relationship between the mode of resentment and the provocation given, whereas provocation is a matter of fact and the relationship must have a factual relevance. Such risk was in issue, for example, in R v Dougherty [1966] NZLR 890.
[56] The most useful jury directions on manslaughter will explain the legal principles in terms of the facts of the case rather than in general terms or abstractions. In the present case, what the jury had to examine was the emotional impact of the alleged provocation on a person otherwise ordinary but having the relevant characteristic of the appellant. In this case, as in all others, what characteristics might be relevant depend on the nature of the provocation.
[57] It was open to the jury in this case to see provocation in terms of expulsion from the family by ejection from the home, severance from the family unit, and threats of deprivation of custody of the appellant’s child. These matters were exacerbated by the sustained verbal and physical assaults in the middle of the night, the upset of Police intervention and the continuation of taunts even after the Police had left. The provoking conduct was not sudden and transitory but repetitive and sustained. A characteristic of the appellant, namely hypersensitivity to rejection, is sufficiently relevant to the nature of the provocation to have been considered by the jury as amplifying the emotional responses by the appellant to rejection and insults.
[58] We return to the Judge’s directions in the following terms:
A defence of provocation to a charge of murder can be valid only when the homicide has been committed in hot blood and while the accused is still in the throes of passion. In law, the provocation need not occur immediately before the killing, but the time element is of great importance. You must consider, as a weighty factor, whether the accused’s acts leading to Mr Ruarau’s death bear any proper or reasonable relationship to the sort of provocation said to have been given by the accused’s mother and Mr Wuatai. The extent of loss of self-control has to be considered, in proportion to the alleged provocation. An ordinary person – see 1.2 p.5 – means an ordinary New Zealander.
[59] Taken out of context this passage may be open to some criticism. The reference to the importance of the time element, in conjunction with references to “throes of passion”, might suggest a need for a temporal connection which, although not immediate, is very short. But the question of time for responding to the provocation had to be examined in the light of the duration and nature of the provocation itself, the dynamics of the family relationship and the personality traits which we have already discussed. These were factual issues and the Judge made it plain that although time was an important issue it was not a legal issue.
[60] Further, the reference to a “proper or reasonable relationship to the sort of provocation” might, taken out of the context of the summing up as a whole, suggest objective proportionality in a way which does not adequately recognise the nature and significance of the traits relied upon as characteristics. But the relevant characteristic could not have been lost sight of by the jury in consequence of anything said by the Judge.
Conclusion
[61] The ultimate issue in this case, is whether at the conclusion of the summing up the jury may have been misled as to how it was required to examine the relevant issues, particularly provocation. The emphasis must be, therefore, not on arguably infelicitous phrases taken out of context but on the quality and accuracy of the directions relevant to particular issues, as a whole.
[62] In light of this, we note the following matters. The Judge emphasised that the sole responsibility of deciding questions of fact was on the jury. He later referred to s 169, the text of which had been handed to the jury, and he emphasised that subs (4) makes it clear that the test of provocation under subs(2) is a question of fact for the jury. Having regard to this direction, Mr King’s suggestion that the jury might have thought that proportionality was a matter of law, is unpersuasive. The Judge pointed out “as most important” that the onus of proof was on the Crown. He made it plain that this required the Crown to exclude provocation beyond reasonable doubt.
[63] The Judge further pointed out that the Crown said that the passage of three hours between what was relied on as provocation and the lighting of the fire, showed that the appellant was not acting in hot blood. The Judge then immediately pointed out the defence argument that the appellant was acting in hot blood, was enraged and not the master of his mind, and was still affected for some time after the fire. This juxtaposition and the Judge’s dealing with it could not have left the jury in any doubt that it was a matter of fact, for them to decide, whether at the time he lit the fire the appellant may have been acting under provocation. The relevance of time to this factual inquiry was further made plain by the Judge’s concluding remarks on the issue, which were in the following terms:
To sum up on this aspect, there are a number of factors you need to consider in deciding whether the provocation was such as to provide this partial defence:
1. The nature of the act of provocation. Just how serious or challenging or distressing were the words used? Were they bad enough provocation to cause the kind of reaction? To what extent was it the culmination of generally provocative conduct?
2. The lapse of time between the provocation and the act of killing.
3. The opportunities for cooling down, or following some other course.
Many persons have differences, sometimes very bitter differences. They do not generally result in one killing another. Was what happened here sufficient to have resulted in the ordinary person, but with the accused’s characteristics, reacting as the accused did?
Although the defence of provocation is a matter raised on behalf of the accused, the onus of proof still rests upon the Crown. It is still the responsibility of the Crown to prove beyond reasonable doubt that this was not a case where provocation applies. That is why I have framed this part of the question as I have. It is in the reverse to s 169(2) because that is to remind you that it is for the Crown to negate provocation.
If the Crown satisfies you on part 2(b) of the question, namely that the accused was not in fact deprived of his power of self-control, then the answer to Q 4.1 will be “yes” and you will find the accused guilty of murder. If however, the Crown does not satisfy you on either part 2(a) or part 2(b), then provocation has been made out and in that event, you must answer Q 4.1 “no” and, when asked your verdict, your answer would be “Not guilty of murder but guilty of manslaughter”.
[64] In our opinion the jury could not have been misled into thinking that for legal reasons the lapse of time and issues of proportionality precluded the defence. It is plain that the jury did decide those issues as matters of fact. We are not satisfied that there has been a misdirection occasioning a miscarriage of justice, or a miscarriage of justice for any other reason, and the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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