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TUESE v R [2005] NZCA 149 (14 June 2005)

Court of Appeal of New Zealand

TUESE v R [2005] NZCA 149 (14 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA503/04

THE QUEEN



v



TALENI TUESE

Hearing: 17 May 2005

Court: William Young, Goddard and Salmon JJ

Counsel: P Le'au'anae for Appellant
J C Pike for Crown

Judgment: 14 June 2005

The appeal is dismissed.

REASONS

(Given by William Young J)

[1]	In the early hours of Thursday 28 August 2003 the late Tioka Fa’aleiila, usually known as Sam Tua and to whom we will refer as "the deceased", was sitting in a bus shelter on Bader Drive in Mangere near the town centre. The appellant, Taleni Tuese, came out of a nearby night club and engaged in some brief interaction with the deceased. The upshot was that the appellant attacked the deceased and severely injured him. The appellant then ran off leaving the deceased lying unconscious on the ground. He was found by a member of the public some time afterwards and taken to Auckland Hospital where he was later to die.
[2]	The appellant was charged with murder. He was tried before Baragwanath J and a jury at the Auckland High Court. At trial the defence involved a denial of murderous intent. Counsel for the appellant specifically indicated to the Judge that provocation was not relied on. The Judge, nonetheless addressed the question whether he should leave provocation to the jury and, in the end, concluded that provocation ought not to be left.
[3]	The jury found the appellant guilty of murder.
[4]	He now appeals against conviction.
[5]	The only point taken on appeal is whether the Judge ought to have left the issue of provocation to the jury.

The facts in more detail

[6]	The only person who was able to give a direct narrative of the events that led to the deceased’s death was the appellant. We will refer shortly to the explanations that the appellant gave both at interview and at trial. But, before we do so, it is appropriate to refer to the injuries suffered by the deceased.
[7]	The undisputed forensic and pathological evidence was that the deceased had been struck with a bottle and a rock that was later found at the scene. There were two major areas of impact, on the top and at the back of his head. At least four, and in all probability more, "moderately severe" blows had been struck. The deceased had injuries to his knees indicating the probability that he had slumped to his knees following an initial blow or blows and that he was then felled by further blows to the top of his head. It appears that he suffered further injuries as he lay on the ground, most likely caused by kicking.
[8]	When the appellant was first interviewed by the police he denied any involvement in the events leading to the death of the deceased. He then gave the police what he was later to admit was a completely false narrative of the events leading to the deceased’s death (in which he asserted that other people were involved in the assault on the deceased). In the course of this account, the appellant said that the incident occurred because the deceased "swore at us".
[9]	At trial the appellant gave another version of events. He said that when he first came across the deceased he (that is the appellant) had just left a night club. His critical evidence in chief was in these terms:

... I was walking past to the bus stop and I saw that man sitting inside the bus stop. When I start walking and I heard – I hear something from her say to me "Bro can I have some smoke?" and I turn around and ask "I got nothing." And he asked me again "Give me some fucking smoke" I turn around I ask him again "I got nothing." After when I say I got nothing and I saw that man stand up walk to me and he say to me "if you not give me a smoke I kill you." And I said "I got nothing." After when I say that and he punched me.
Where did the punch hit you? .... At the front of the bus stop.
Where on your body did the punch hit you? .... On this side (witness refers to the left side of his face).
Did that man say anything else when he hit you? .... No just only stand and watching me I was fall down on the grass.
...
What happened next? .... I fell down I was scared quite worried. I saw some empty bottles by the bus stop and I picked up one and threw it at him.
Did you see where the bottle landed? .... I don’t know which side of the head but it was the head that the bottle landed.
What happened to the man when the bottle hit him? .... He was still standing he looked like he was trying to fell thru round his head and appeared to be in pain.
What happened next? .... I got up and picked up another bottle. I walked towards him and struck him with it.
...
What happened to the bottle when it hit the man? It broke and it cut my finger.
What happened to the man? .... He fell down.
Did he fall backwards or forwards if you can remember? .... I don’t remember.
Why did you hit him? .... I was angry with him for doing what he did to me there was no reason to do it I’d done nothing to him.
...
What happened next? ... I walked towards him grab him by his shirt.
Did he say anything? .... He kept on swearing to me.
What did he say? .... He say "Fuck you. Leave me alone."
What did you do next? .... I dropped him down and I left.

He denied striking the deceased with the rock

[10]

The appellant’s account of the events was not a good fit with the pathological and forensic evidence. The deceased suffered far more injuries than the appellant’s evidence suggested. Although the appellant claimed that he had been punched hard by the deceased, the pathologist found no sign of injury to the deceased’s hands. No trace was found by the police of the bottle which the appellant claimed to have thrown at the deceased.

[11]

Both the appellant and the deceased were affected by alcohol. A post mortem blood sample taken from the deceased showed that he had been heavily intoxicated when he died.

The Judge’s ruling as to whether provocation should be left

[12]	When the Judge concluded that he ought not to leave provocation to the jury, he gave the following reasons:

[9] In the cases counsel have cited, and in the discussions I have had the opportunity to read, the Courts have not to date admitted the partial defence for the juries’ consideration in the circumstances of a short term casual encounter of the present kind. The cases generally have to do with family relationships and other circumstances where there is a welled up angst on the part of the offender. That is not to say that an isolated incident cannot qualify. Bedder’s case [1954] 1 WLR 1119 (HL) is the classic example of the opposite. Here, however, the defence disclaim any element of distinctive characteristics which were the focus of that case.
[10] It is ultimately for the Judges of this Court and the appellate courts to set the standards of what is "the power of self-control of an ordinary person". The passage in the evidence relied upon is:

Can you tell us what happened next as you were walking in front of the bus shelters? ... I was walking past to the bust stop and I saw that man sitting inside the bus stop. When I start walking and I heard – I hear something from her say to me "Bro can I have some smoke?" and I turn around and ask "I got nothing." And he asked me again "Give me some fucking smoke" I turn around I ask him again "I got nothing." After when I say I got nothing and I saw that man stand up walk to me and he say to me "If you not give me a smoke I kill you." And I said "I got nothing." After when I say that and he punched me.

Where did the punch hit you? .... At the front of the bus stop.

Where on your body did the punch hit you? .... On this side (witness refers to the left side of his fact).
Did that man say anything else when he hit you? .... No just only stand and watching me I was fall down on the grass.

[11] The circumstances included the fact that Mr Tua had the equivalent of a breath alcohol reading of 297 compared with the 80 stipulated by the Land Transport Act. The fact of Mr Tua’s being heavily drunk must have been wholly apparent to Mr Tuese even though he too had consumed a good deal of alcohol, the effects of which were evident upon him when he presented for work the following morning.
[12] For a Court to conclude that to respond to foul language and a single punch by losing control such as, on the Crown’s case, to beat in Mr Tua’s skull with a rock, break a bottle across his head with all possible force and repeatedly strike the bloodied area of his head would be inconsistent with the standards of the ordinary New Zealander to whom the judiciary are ultimately accountable.
[13] I am not prepared to find that the ordinary person’s power of self-control would be lost in such circumstances from which it follows that the defence were right in electing not to address on provocation.

Evaluation

[13]	If there was "a plausible narrative of causative provocation" which could reasonably have resulted in a successful defence of provocation, the Judge was required to leave the defence to the jury, see the decision of this Court in R v Matoka [1987] 1 NZLR 340 at 344.
[14]	Section 169 of the Crimes Act 1961 relevantly provides:

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.
...

[15]

Baragwanath J focused on the objective component of the provocation test provided for under s 169(2)(a). The focus of this inquiry must be on the actual acts of the defendant. If the jury concludes that a defendant would not have killed the deceased, if he or she had exercised ordinary powers of self-control, the defence must be rejected, see R v Nepia [1983] NZLR 754 at 756. If the Judge concludes that a jury acting reasonably would have to reject the defence on this ground, it is open to the Judge, acting under s 169(3), to withdraw the defence.

[16]

The issue for the Judge was one of evaluation. There is a limit to what can usefully be said. It is sufficient to say that we see the situation in the same way as the Judge did - that it is self-evident that the appellant would not have killed the deceased had he exercised ordinary self-control. That being so, the Judge was right not to leave provocation as a defence to the jury.

Result

[17]	The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington