The Queen v Zhou

[2007] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

CA392/06
[2007] NZCA 104

THE QUEEN

v

ZESHEN ZHOU

Hearing:27 February 2007

Court:Robertson, Arnold and Ellen France JJ

Counsel:M J Corry for Appellant

J C Pike for Crown

Judgment:29 March 2007 at 3 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       The appellant, who came to New Zealand from China over 12 years ago, was charged with the murder of his wife.  He admitted that he had killed her in a violent, sustained assault during which he had inflicted numerous injuries on her with a knife, a meat cleaver and a hammer.  He sought to rely on the partial defence of provocation.  The provocation alleged was essentially that his wife had told him that she wanted a divorce and that she was in love with somebody else.

[2]       After the Crown witnesses had been heard but before the Crown had closed its case, the appellant sought a ruling that there was a credible narrative sufficient to require provocation to be put to the jury.  His counsel, Mr Corry, advised that the appellant was not proposing to give evidence himself but said that he intended to call two expert psychiatric witnesses.

[3]       Following a voir dire at which one of the experts (Dr Pillai) gave evidence, Potter J ruled that, on the evidence then before the Court, provocation could not go to the jury.  The Judge indicated, however, that she would re-assess that if the appellant elected to give evidence.

[4]       The appellant did not give evidence.  He was convicted of murder and sentenced to life imprisonment with a minimum period of imprisonment of 17 years.  He has appealed against his conviction on the basis that provocation should have gone to the jury and against the imposition of the minimum period of imprisonment of 17 years.  The latter ground of appeal was not pursued before us, so we deal only with the appeal against conviction.

Background

[5]       The Judge explained the context of her ruling as follows:

[4] The defence contends that the evidence of the two proposed expert witnesses is relevant and central to the partial defence of provocation. In particular it is said that the evidence is relevant to establish that the accused had a special characteristic or special characteristics in terms of s 169(2)(a) of the Crimes Act [1961].

[5]       The expert witnesses the defence proposes to call are:

a)Professor S P Robertson, Professor of Paediatric Genetics, University of Otago who would give evidence about Klinefelter syndrome with which the accused has been diagnosed.  Professor Robertson has not examined or met the accused.

b)Dr K C Pillai a consultant psychiatrist at the Mason Clinic who provided the opinion in a report dated 29 August 2006 (which referred to a previous report dated 22 September 2005 prepared pursuant to s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003) that it was likely that the accused was in a state of pathological or morbid jealousy at the time of the index offence.

[6]      The Crown objects to the admission of the expert evidence on the grounds that it is irrelevant and contends that:

a)The evidence does not establish a special characteristic for the purposes of a provocation defence.

b)The evidence of Professor Robertson is irrelevant because, while it is accepted by the Crown that the accused has been diagnosed with Klinefelter syndrome, there is no evidence which links that condition with the asserted provocation.

c)The evidence and opinion of Dr Pillai as to the asserted special characteristic of pathological or morbid jealousy is based significantly on self reporting by the accused which is not corroborated by direct or indirect evidence.  Dr Pillai’s evidence is therefore inadmissible because it is both hearsay and irrelevant.

d)The evidence is not relevant to the inquiry under s 169(2) as to whether in fact the accused lost the power of self-control.

[7]      The Crown’s position is that, absent a special characteristic, there is not sufficient evidence for a jury to find that the accused acted under provocation.  Mr Haszard submitted that, put at its highest, the provocation, based on the evidence of the accused as given in a video interview with the Police (there being no other evidence) is that the deceased:

·     said she wanted a divorce;

·     said there was a third party involved;

·     handed the accused a knife;

·     said if he did not kill her then let her go away.

[8]      Mr Corry accepts that it is not reasonably possible for a jury to find that those factors alone amount to provocation such as to deprive an ordinary person of the power of self control.  He acknowledges that the provocation defence depends on establishing that the accused had a special characteristic or special characteristics such that those factors amounted to provocation that was graver for the accused than for an ordinary person.

[6]       The Judge said that the first issue for consideration was whether there was sufficient evidence of the claimed characteristics for them to be put before the jury.  If there was sufficient evidence, the Judge identified as the second question whether in the circumstances of the case either Klinefelter syndrome or pathological or morbid jealousy qualified in law as a characteristic sufficient to found a defence of provocation.

[7]       In relation to Klinefelter syndrome the Judge noted that there was no dispute that the appellant had been diagnosed with the syndrome.  The point in dispute was whether there was a sufficient relationship between the characteristic and the alleged provocation.

[8]       The Judge referred to the evidence of Dr Chan, the appellant’s doctor and a Crown witness, who stated that the appellant had been diagnosed with Klinefelter syndrome in April 2001.  Dr Chan explained that Klinefelter syndrome is a chromosome abnormality in which a male has an extra ‘X’ chromosome.  This causes sufferers to have a rather feminine appearance, and they often suffer from decreased fertility and may also suffer from tiredness and aches and pains.  Professor Robertson’s proposed evidence was intended to develop this aspect by outlining the principal features of the syndrome, namely patient infertility, increased risk of psycho-social stress, enhanced rates of psychiatric disorders, poor self-esteem and passivity.  Professor Robertson had not interviewed the appellant.

[9]       The Judge held that there was no evidence which could establish a sufficient relationship between Klinefelter syndrome and the asserted provocation.  The Judge ruled that the evidence of Professor Robertson was not admissible.  Mr Corry, who had apparently accepted that Professor Robertson’s evidence was not relevant at the conclusion of the voir dire, did not pursue this aspect as an independent ground on the appeal.

[10]     As to pathological or morbid jealousy, Dr Pillai had prepared two reports concerning the appellant.  The first, dated 22 September 2005, was an assessment report prepared for the purposes of s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  In that report Dr Pillai concluded that the appellant was “suffering from a psychosis at this time best described as a Psychotic Disorder Not Otherwise Specified.”  Dr Pillai said that the information which he relied upon in preparing this report came from an interview with the appellant and an interview with members of the appellant’s family, both conducted through an interpreter, prison files and records, and talking to the appellant’s general practitioner.

[11]     On 29 August 2006 Dr Pillai prepared a further report.  In preparing this report he sat in on an interview of Mr Zhou conducted by Dr Cavney, with the assistance of an interpreter.  Dr Pillai concluded:

The information obtained suggests that Mr Zhou has had a pre-morbid personality-type based around isolation and suspiciousness of others.  Mr Zhou is likely to have suffered a further and significant blow to his self-esteem with the diagnosis of Klinefelter syndrome which became apparent in the context of investigation because of the difficulty he and his wife had in conceiving a child. 

Overall in Mr Zhou’s case I believe it is likely that he was in a state of pathological jealousy (exaggerated in intensity, based on erroneous interpretation of benign events, characterised by repeated checking behaviours) at the time of the index offence. …

The matter of Klinefelter syndrome may complicate the situation further.

[12]     Pathological or morbid jealousy is not a disorder recognised in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

[13]     In addition to Dr Pillai’s proposed evidence, Mr Corry relied on what the appellant had said to the police in his initial interview on the day of the offence and later the same day in a more extensive video interview, conducted with the assistance of an interpreter. 

[14]     Detective Constable Ip interviewed the appellant at the time of his arrest.  Detective Constable Ip is fluent in Cantonese and conducted the interview in that language.  He recorded the questions and answers in his notebook, in English.  The following exchanges occurred:

Q.Do you know the reason why you are here?

A.Yes, it’s because I killed my wife.

Q.Why did you do that?

A.She wanted to get a divorce.

Q.How did it all start?

A.We had yum char at a restaurant behind Tofu Shop in Te Rakau Drive.  It was just me and her there in the restaurant, she did say divorce and said if my mortgage account was in the negative then it was going to happen for real.  We went to Botany ASB ATM machine and I checked the account.  It was not in the negative.  Then she wanted to check my other ASB account and I had an overdraft of $1000.  She wanted a divorce.  I told her it’s not fair because she only said the mortgage account and not the other account.  From there we went to her mother’s address.  It’s 51 or 59 and somewhere in Pakuranga.  There was nobody there.

Q.Where did you get the butcher knife?

A.She handed it to me.

Q.Was this in the kitchen?

A.Yes.

Q.Why did she hand it to you?

A.She said to me either I killed her or I let her go.

Q.What happened after that?

A.Then you know what happened, I killed her.

Q.What was the argument about?

A.She said there is another guy.  She said she liked him. 

Q.Have you seen this guy before?

A.No, if I have, it will be him I’ll be after.

Q.Do you know his name?

A.No.

Q.Where did she say she met this guy?

A.She didn’t say.

Q.Were you jealous of the fact that she liked another guy?

A.No answer.

…

Q.Are you thinking clearly now?

A.Yes.

….

Q.Did you have sex with your wife today?

A.No, she wouldn’t let me have sex with her for a few days.

[15] Detective Greally conducted a video interview later the same day, through an interpreter. Detective Ip attended for the first part of the interview and took the appellant through the questions and answers of the initial interview, as recorded in his notebook. In the course of that, the appellant confirmed the various answers set out at [14] above and added some additional comment. He said that, at the point at which his wife handed him the knife, she was yelling and that “anybody would get angry if anybody heard what she said to me.”

[16]     Once that had been completed, Detective Greally conducted the interview.  The appellant confirmed what he had said to Detective Ip and said that he was “quite angry” and that he was in a “hot temper”.  He said that his wife had mentioned that she had a “third person out there”, whom she loved.  He said that he and his wife had argued, and that every time she scolded him it was at the top of her voice.  He then said:

A.So I’m weak because of the argument well being angry well the knife she gave me the knife.  Then I did not … what happened then, all I knew was that I killed her. 

[17]     The following questions and answers are recorded:

Q.Now, so far you’ve said that your wife wanted a divorce.  And as a result you had an argument.  And you said that she handed you a knife.  And told you to either let her go or to kill you, kill her.  Is that correct?

A.She said, either let her go away and to be with the guy.

….  

Q.So when your wife gave you the knife, did you hit her with the knife?

A.Yeah, she handed me two knives and said now here, 2 knives, you get one.  You can chop me to death.  It’s all I can remember for what, for what happened ah following I can’t remember.

Q.So then your wife was found lying down on, in the bathroom.  With lots of blood all over the floor and walls.

A.Yeah I saw that.

Q.Yep.

A.It’s only when the police knock on the door.  And then I suddenly became awake, well I don’t know.

….

Q.But the next thing you remember was people knocking on your door, saying Police.  And you made a phone call to your Dad.  Is that true?

A.I can only remember people knocking at the door.  Then.  I suddenly became awake.

[18]     From this material Mr Corry emphasised the references to his wife wanting a divorce, to the other person whom he thought his wife loved and to his being in a hot temper and angry.

Discussion

[19]     Mr Corry said that the appellant’s argument was that his wife’s disclosure of her love for another man was sufficient to deprive an ordinary person, having the characteristic of pathological jealousy, of the power of self control and did in fact deprive the appellant of the power of self control.  The critical question on the appeal is whether Dr Pillai’s evidence was correctly excluded on the basis that it was largely based on self-reporting by the appellant and was insufficiently corroborated by other evidence, whether from the police interviews or elsewhere.

[20]     The use of hearsay material by expert medical witnesses was discussed by this Court in R v Rongonui [2000] 2 NZLR 385, particularly by Elias CJ at [48] ‑ [64]. In that case the appellant was convicted of murder committed during the course of a robbery. The defences were lack of necessary intent to murder and provocation. The defence wished to lead expert evidence that the accused was suffering from a major depressive episode. This resulted from long-term violence and sexual abuse against her, long-term substance abuse leading to brain damage and stress arising from her concern that the Children and Young Persons Service (CYPS) was about to remove her children from her care. This, together with various events which occurred in the 24 hours leading to the killing, had, the defence claimed, caused her to lose control.

[21]     At the conclusion of the Crown case, and before the defence election to call evidence, the accused’s counsel advised the Judge that the defences were lack of murderous intent and provocation.  Counsel advised that he proposed to call two expert witnesses and a social worker to give evidence as to the accused’s state of mind at the time of the killing.  The Crown objected.

[22]     The trial Judge ruled that there was sufficient evidence in the accused’s statements to the police to justify provocation going to the jury.  However, the Judge ruled that the proposed evidence of the experts and the social worker was not admissible until a factual foundation for it had been laid.  The Judge said that this evidence was based on hearsay and that the factual foundation would have to come from the accused.

[23]     The Chief Justice noted (at [48]) that the inclusion of hearsay material in expert evidence is not necessarily fatal to its admission, citing R v Smith [1989] 3 NZLR 405 at 408-411 (CA) and R v Gordon (1993) 10 CRNZ 430 (CA).  She said that if the hearsay material is largely non-contentious and the surrounding circumstances make probable that it is true, it would be unduly technical to exclude it.  The Chief Justice said (at [49]):

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.

[24]     In considering the facts in Rongonui, the Chief Justice drew a distinction between two categories of information upon which the experts relied.  On the one hand, there was background material that was largely uncontentious and was corroborated by other material.  On the other, there were the immediate events leading to the killing.  

[25]     In the first category was information about the physical and sexual abuse which the accused had suffered in the past, her long term substance abuse and the stress which she was under in relation to her children.  This was substantiated by prison and similar records and by the involvement of CYPS with the family, which meant that it was highly likely that the past history as reported to the experts was reliable (see [51] – [52]).

[26]     The events leading immediately to the killing were very much in dispute, however.  In relation to those, the Chief Justice said (at [53]):

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 [the experts] 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 [the victim] had rejected the appellant’s request for assistance in babysitting her children or had presented a knife at her.  Since these actions by [the victim] 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.

[27]     But the Chief Justice went on to say that a proper evidential foundation had been laid in the course of the Crown case, in the statements which the appellant had made in her interviews with the police and in her statements to other Crown witnesses (at [54]).  The Chief Justice said that the statements which the appellant made to the experts did not go beyond the statements introduced as part of the Crown case (at [62]).  Accordingly the evidence of the experts was admissible even if the appellant did not give evidence.

[28]     On this aspect of the case it appears that all members of the Court agreed with the Chief Justice.

[29]     The present case differs from Rongonui in two significant ways:

(a)The background history is much less extensive and, to the limited extent that it does exist, cannot readily be assessed for reliability.

(b)The material in the appellant’s statements to the police, which is relied on to support the defence of provocation, is much more limited.

[30]     In his evidence on the voir dire, Dr Pillai said that he had relied on very little material from his 2005 report in reaching his view that the appellant was suffering from pathological or morbid jealousy.  The material he relied on from that earlier report was the appellant’s belief that something had gone wrong with his relationship with his wife, that he said she would not have sex with him and had asked him for a divorce, that he believed that his wife was seeing another man, that he said he had thought of suicide, and that the appellant’s father had said that the appellant had become more irritable and had argued with his wife.  He also said that his 2005 diagnosis of Psychotic Disorder Not Otherwise Specified could be put to one side.  

[31]     Dr Pillai identified the three main factors upon which he relied in making his diagnosis as:

(a)The appellant’s conviction that his wife was having an affair, a conviction formed in the absence of definitive or objective information;

(b)The appellant’s “checking” behaviours (for example, repeatedly asking his wife about whether she was having an affair);

(c)The severity of the appellant’s response to his suspicions about his wife (as reflected in the murder) and the extent of the appellant’s preoccupation with his wife’s (assumed) infidelity.

[32]     Dr Pillai said that the morbid jealousy had arisen over a period of two to three weeks before the murder, but that the appellant faced an increased risk of this condition because of his background – which, based on what he had said, was that he was a loner and distrustful and had been unable to adapt to New Zealand society, to remain in employment or even to acquire basic competence in English.   In relation to Klinefelter syndrome, Dr Pillai said that it might have caused the appellant to have fears and anxieties about his sexual functioning, but he acknowledged that there was nothing specific about the characteristics of the syndrome in the appellant’s case which he took into account in making his diagnosis.

[33] In cross-examination Dr Pillai was asked about the information which he had relied upon in identifying the three factors referred to at [31] above. He accepted that “almost all” of it had come from the appellant.

[34]     The information supporting the view that the appellant was convinced that his wife was having an affair came from what the appellant said to Dr Pillai at the time of the first report and in the interview with Dr Cavney, which Dr Pillai attended as an observer.  The appellant had said that things had been changing in his relationship with his wife in a way he did not understand and he talked of a tapping on the window, which he interpreted as her lover in the back yard.  Dr Pillai said that this was an example of “possibly benign environmental stimulae interpreted in a pathologically suspicious way.”   Dr Pillai said that the police interview provided “supporting information” because the appellant had identified the belief that his wife was having an affair as the reason that he had lost control.

[35]     In relation to the appellant’s checking behaviours, Dr Pillai said that he relied on what the appellant had told Dr Cavney and nothing more.

[36]     Finally, in relation to third factor, Dr Pillai said that the severity of the appellant’s response to his wife’s (apparent) disclosure of infidelity was a characteristic of morbid jealousy.  He accepted, however, that it could be a reaction to something else.  In terms of the appellant's preoccupation with his wife's fidelity, Dr Pillai’s assessment was based upon what the appellant had told both him and the police.

[37]     As will be apparent, the information which Dr Pillai relied on to identify the second of three principal factors upon which based his diagnosis (checking behaviours) came from the accused’s interview with Dr Cavney.  The relevant information was not mentioned by the appellant in his interviews with the police, and is not supported by the evidence of any other Crown witnesses.

[38]     In relation to the other two factors, some of the underlying information came from the appellant’s interviews with the police, but more detailed material came from the appellant’s interview with Dr Cavney.

[39]     Accordingly, we consider that the Judge was right to exclude Dr Pillai’s evidence, on the ground that the necessary supporting factual material was not before the Court.  Putting the matter in the context of the analysis adopted by the Chief Justice in Rongonui, most of the material relevant to Dr Pillai’s diagnosis related to the two or three week period leading up to the homicide.  Most of that material was likely to be highly contentious but could not be assessed for reliability by reference to sources outside the appellant.  While some of the necessary information came in through Crown witnesses, especially the appellant’s statements in his police interviews, much did not.  In other words, in the present case, unlike in Rongonui, the appellant’s statements to the expert went significantly beyond his statements to the police.

[40]     In view of the conclusion that we have reached on this aspect of the case, we are not called upon to determine whether pathological or morbid jealousy would have qualified as a special characteristic if an appropriate evidential foundation had been laid.

Decision

[41]     The appeal against conviction is dismissed.  As we have said, the appeal against sentence was not pursued and is formally dismissed.

Solicitors:

Crown Law Office, Wellington