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In the High Court in Wellington, Janine Rongonui was convicted of murder and sentenced to the mandatory term of life imprisonment. Rongonui had relied upon the partial defence of provocation, provided for in section 169 of the Crimes Act 1961. Rongonui now appeals her conviction on the ground that the trial judge’s directions to the jury as to the meaning of section 169(2)(a) of the Crimes Act 1961 were incorrect and resulted in a miscarriage of justice. The issue to be determined is the correct interpretation of section 169(2)(a) in light of its statutory context and the common law.
May it please the Court, the submissions for the Crown, in support of the High Court Judge’s directions, are as follows:
1. The meaning of section 169(2)(a) of the Crimes Act 1961, in terms of its text and purpose, differentiates between the self-control of an ordinary person and the characteristics of the accused by the use of “but otherwise”.
2. In accordance with the case-law, the characteristics of the accused in section 169(2)(a) of the Crimes Act 1961 apply only to the susceptibility of the accused to provocation, not to the accused’s level of self-control.
The meaning of section 169(2)(a) of the Crimes Act, in terms of its text and purpose, differentiates between the self-control of an ordinary person and the characteristics of the accused by the use of “but otherwise”.
1.1 Section 169(2)(a) of the Crimes Act 1961 states:
(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.
1.2 Section 5 of the Interpretation Act 1999 provides the legislative guidelines in New Zealand for ascertaining the meaning of legislation. Under section 5, the meaning of legislation is to be “...ascertained from its text and in the light of its purpose”.[1] Section 5 also provides that in ascertaining the meaning, factors including “...the organisation and format of the enactment” may be considered.[2]
1.3 The Crown submits that the meaning of section 169(2)(a) of the Crimes Act must be ascertained in accordance with section 5 of the Interpretation Act 1999.[3] Section 169(2)(a) must be interpreted from its text, in light of its purpose, and in consideration of its organisation and format.
1.4 In applying the above approach to the interpretion of section 169(2)(a), the Crown submits that the words “but otherwise” dominate the section. It is submitted that the absence of these words, or their replacement by any other words, would result in section 169(2)(a) having a substantially different meaning. The organisation and format of the section provide, in the words of Professor Orchard, that:
For a characteristic to be relevant it must make it more likely that a person with ordinary self-control would have lost self-control and reacted as the accused did, and it must make this more likely for some reason other than that it reduced that power of self-control.[4]
1.5 The function of the words “but otherwise” is further illustrated in Sir Francis Adams’ analysis of section 169(2)(a):
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. Whereas the offender’s characteristics are relevant to (a), they are irrelevant to (b).[5]
1.6 It is the appellant’s argument that “characteristics” are directly relevant to an accused’s power of self-control. The Crown submits that such an argument means ignoring the words “but otherwise” in section 169(2)(a), and effectively nullifies Parliament’s inclusion of them. The Crown further submits that such a move is beyond the jurisdiction of the Court as it effectively rewrites the legislation, and that is the sole responsibility of Parliament.
1.7 The Crown submits that the purpose of section 169 can be ascertained by reference to the New Zealand Parliamentary Debates. The Honourable J R Hanan described the Bill as a response to a then recent decision of the House of Lords in Bedder v the Director of Public Prosecutions.[6] The decision resulted in the physical peculiarities of an accused having to be disregarded in relation to a defence of provocation, even if the provocation was directed at those same peculiarities. The Minister introduced the changes to section 169 as “...a more reasonable test”, with the result that:
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.[7]
1.8 In R v Campbell, the Court stated:
The purpose of the enactment of section 169 was to give some relief from the rigidity of the purely objective test of the reactions of the reasonable person.[8]
The Crown submits that section 169(2)(a) achieves the purpose intended by Parliament and set out in R v Campbell only when interpreted as submitted above in paragraph 1.3. Interpreted in this way, a person is still held to the objective test of having the self-control of an ordinary person, but the relief is that “characteristics” can be taken into consideration when assessing the person’s susceptibility to the provocation.
In accordance with the case law, the characteristics of the accused in section 169(2)(a) of the Crimes Act 1961 apply only to the susceptibility of the accused to provocation, not to the accused’s level of self-control.
The three leading New Zealand authorities that deal with the interpretation of section 169(2)(a) are R v McCarthy,[9] R v Campbell,[10] and R v McGregor.[11] The Judicial Committee of the Privy Council considered the section in Luc Thiet Thuan v The Queen.[12]
2.1 The Crown submits that the observations of this Court in R v McCarthy[13] in relation to section 169(2)(a) be applied in this case. In R v McCarthy, the Court defined the questions posed by section 169(2)(a) as being:
...[W]hether 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.[14]
The approach of the Court in R v McCarthy is in accordance with the Crown’s submissions as to the correct interpretation of section 169(2)(a), and as to the significance of the words “but otherwise”.[15]
2.2 Luc Thiet Thuan v The Queen[16] was a decision of the Judicial Committee of the Privy Council, from an appeal from the Court of Appeal of Hong Kong. In this case, their Lordships considered the issue of provocation as provided for in English legislation (being identical in this area to Hong Kong legislation).[17] In their reasoning, their Lordships considered the New Zealand legislative provisions and case law for the defence of provocation and approved the interpretation of section 169(2)(a) established in R v McCarthy.[18] The Crown submits that this consideration by the Privy Council is highly persuasive to this Court.
2.3 The Crown submits that the findings of this Court in R v Campbell[19] in relation to section 169(2)(a) be applied to this case. In R v Campbell this Court adopted the same line of reasoning on this issue as was set out in the observations of this Court in R v McCarthy and approved by the Privy Council in Luc Thiet Thuan v The Queen:
...[T]he jury may take the ... characteristic into account in assessing the gravity of the [provocation] when applied to the particular person to whom it was addressed. ... But in turning to the objective question, the self-control of the hypothetical person is taken to be that of an ordinary person and not overlaid with the consequences flowing from the possession of the characteristic.[20]
As with R v McCarthy, the approach of this Court in R v Campbell is in accordance with the Crown’s submissions as to the correct interpretation of section 169(2)(a), and demonstrates the significance of the words “but otherwise”.[21]
2.4 R v McGregor is the leading New Zealand case in support of the argument for the appellant.[22] In R v McGregor the Court stated the following:
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.[23]
The Court in R v McGregor interpreted section 169(2)(a) to mean that “characteristics” are directly relevant to the self-control of the offender.[24] The Crown submits that this interpretation be distinguished on two grounds: first, that it does not comply with the guidelines for statutory interpretation set out in the Interpretation Act 1999; and secondly, that it has been superseded by the more recently established interpretations in R v McCarthy and R v Campbell.
2.5 R v McGregor, R v McCarthy and R v Campbell are the three leading cases in New Zealand that deal with the interpretation of section 169(2)(a). All three cases were heard in the Court of Appeal, and each before a bench of three judges. The Crown invites this Court of five judges to consider its most recent statements on section 169(2)(a) as being highly persuasive in coming to its decision.
2.6 It is acknowledged that there may be difficulties in the application of section 169(2)(a). The Crown submits that it is the role of the Court to interpret the section as enacted, and the role of Parliament to ameliorate it. In the words of Lord Goff of Chieveley:
If the statute is now perceived to lead to unacceptable results, steps should be taken as soon as possible to persuade the ... legislature ... to amend it.[25]
2.7 The issue on appeal is the correctness of the High Court judge’s directions to the jury as to the meaning of section 169(2)(a). The judge’s directions include the following:
...[C]haracteristics 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.[26]
The Crown submits that the judge’s directions are correct because they are in accordance with the interpretations of section 169(2)(a) established in R v McCarthy and R v Campbell.
In conclusion for the Crown, it is respectfully submitted that:
1. The meaning of section 169(2)(a) of the Crimes Act, in terms of its text and purpose, differentiates between the self-control of an ordinary person and the characteristics of the accused by the use of “but otherwise”.
2. Following the most recent New Zealand authorities on the interpretation of section 169(2)(a), and in line with a recent Privy Council judgment, the characteristics of the accused apply only to the susceptibility of the accused to provocation, and not to the accused’s level of self-control.
The Crown respectfully submits that the High Court judge’s directions to the jury regarding provocation were correct, and that accordingly this appeal be dismissed.
May it please the court, that concludes submissions for the Crown.
[*] LLB student, University of Waikato, winner, 2000 McCaw Lewis Chapman Advocacy Contest. The competitors in the Contest were required to stand in the shoes of either counsel for the appellant or counsel for the Crown, and present an argument as at the day of the hearing in the Court of Appeal.
[1] Interpretation Act 1999, s 5(1).
[2] Section 5, subss (2) and (3).
[3] Section 4, “Application”.
[4] Orchard, “Provocation – Recharacterisation of ‘Characteristics’” (1996) 7 Canterbury Law Review 202, 208.
[5] Adams, F Adams on Criminal Law (4th ed) para CA169.10A.
[8] [1997] 1 NZLR 16, 25.
[10] Supra note 8.
[11] [1962] NZPoliceLawRp 13; [1962] NZLR 1069.
[12] [1996] UKPC 57; [1997] AC 131.
[13] Supra note 9.
[14] At 558.
[15] See paragraphs 1.2 to 1.8 above.
[16] Supra note 12.
[17] Homicide Act 1957.
[18] Supra note 12, at 143.
[19] Supra note 8.
[20] At 26.
[21] See paragraphs 1.2 to 1.8 above.
[22] Supra note 11.
[23] At 1081.
[24] Ibid.
[25] Supra note 12, at 148.
[26] R v Rongonui [2000] NZCA 273; [2000] 2 NZLR 385, 409.
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