THE QUEEN v ANIFELETI AHOVELO MESUI [1999] NZCA 286 (2 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca471/99 Ca485/99

THE QUEEN

V

ANIFELETI AHOVELO MESUI

Hearing:	1 December 1999 (at Auckland)
Coram:	Blanchard J Anderson J Panckhurst J
Appearances:	M J Thomas for Crown P J O'Driscoll and R A Sinisa for Respondent
Judgment:	2 December 1999

judgment of the court DELIVERED BY ANDERSON J

[1] On 29 September 1999 the respondent was convicted of manslaughter on an indictment alleging murder.He was also convicted on a second count of injuring with intent to cause grievous bodily harm, contrary to s 189(1) of the Crimes Act 1961.On 5 November 1999 he was sentenced to two years imprisonment for the manslaughter and one years imprisonment, to be served concurrently, for the crime of injuring with intent.Mr Mesui appeals against the convictions on the grounds that there has been a miscarriage of justice by reason of the trial Judge's ruling that certain evidence concerning Mr Mesui's state of mind was inadmissible.The Solicitor-General seeks leave to appeal against the sentences on the grounds that the effective sentence of two years imprisonment was manifestly inadequate.

[2] The relevant facts are that on Saturday 22 August 1998 Mr Mesui, Edward Sekona and Philip Funaki were at the home of Mr Mesui's parents, cooking pigs in an umu for a church function.It is relevant, for reasons which will appear in the judgment, that all three men are Tongan.During the day these men, along with a few others, consumed six bottles of bourbon.Mr Sekona, whose manner had become increasingly offensive and abusive as his intoxication progressed, made persistent lewd remarks to and about certain of Mr Mesui's relations.His behaviour further deteriorated into drunken threats directed at Mr Mesui and his parents.Eventually, when Mr Sekona was sitting on the ground, Mr Mesui picked up a piece of timber about two feet long and two inches square which he swung as if it were a baseball bat and struck Mr Sekona on the head.When Mr Funaki tried to intervene Mr Mesui attacked him also.He hit this victim at least twice, causing the timber to break and inflicting injuries to Mr Funaki's eye and forearm.Some days later Mr Sekona died from the head injury.

[3] To support defences of provocation and self defence Mr Mesui's counsel had sought to introduce evidence from expert psychiatrists, Dr D G Chaplow and Dr Siale Foliaki, in connection with the effect on a Tongan person, in a Tongan cultural context, of words and conduct of the type directed at Mr Mesui.

[4] Dr Chaplow's brief outlined his qualifications, adverted to matters of fact concerning the build-up to the ultimate violence, and expressed the conclusion that the appellant had become increasingly fearful of both the victims, with his conduct being triggered by threats to his parents and to himself that they would kill him.The doctor expressed a view that "the close and threatening presence of these two men, drunk and much stronger and bigger than him, in my opinion caused him to be overcome by fear."

[5] Dr Foliaki's brief also outlined his extensive qualifications which had the additional qualities of specialist knowledge and qualifications in relation to mental illness, alcohol misuse and gambling amongst Tongan, and knowledge of the Tongan people and culture.He referred specifically to some of the lewd and threatening language used by Mr Sekona.It is unnecessary to repeat the words, it being sufficient to acknowledge the cogency of the provocation in the light of Dr Foliaki's evidence about their particular offensiveness in terms of Tongan culture.Dr Foliaki was also able to testify to the perceived danger to a Tongan of a threat to kill him made by another Tongan.The trial Judge correctly admitted this evidence but disallowed further evidence which was partially narrative and essentially supporting a conclusion expressed in the following way:-

I believe that, having tried to keep the peace for a considerable time, the accused became increasingly fearful and concerned about both Filipi and Etuati. The threats to his parents and to himself that they would kill him were the final triggers which made him abandon his role as a peacemaker.The close and threatening presence of these two men, drunk and much stronger and bigger than him in my opinion caused him to react.

[6] The trial Judge ruled that the whole of Dr Chaplow's and part of Dr Foliaki's evidence was inadmissible.The basis of such ruling was that although these intended witnesses were highly qualified and experienced psychiatrists, the intended evidence amounted to a personal, non medical judgment based on their assessment of the circumstances.The Judge held that medical qualifications and experience did not enable either of them to give more assistance to the Court on the issue of the appellant's state than the qualifications and experience of, say, a long serving Judge or a long serving police officer.He was of the view that such testimony would not be of real assistance to the jury in assessing the evidence and deciding what the appellant's state of mind was.In addition he referred to the delays and costs and distractions of expert evidence of such a nature which was at best only marginally helpful to the jury and might be distracting and confusing.

[7] Before this Court Mr O'Driscoll submitted that the excluded evidence was capable of materially assisting the jury and that consistent with principles elucidated by this Court in R v Decha-Iamsakun [1993] 1 NZLR 141, 146, and by the High Court in R v Hohana (1993) 10 CRNZ 92, 95, the evidence should have been admitted.

[8] We have no difficulty in accepting that expert evidence of the effect on the perceptions or emotions of the appellant of behaviour which may have been more threatening or provocative by reason of ethnic or cultural considerations would be admissible in a case where provocation and self defence were properly in issue.The nature and form of such evidence may, however, affect its admissibility.The evidence of Dr Foliaki which the Judge admitted was in a relevant and helpful form.It was capable of informing the Court why behaviour which would be offensive and threatening in society generally might seem even more so in a Tongan cultural context.Helpful detail was given including the reasons why, for cultural reasons, the appellant did not leave the scene rather than reacting to the behaviour.Evidence of such a nature may often be led where subjective perceptions of danger or characteristics which exacerbate the effect of provocation are in issue.A recent authority, relevant for other reasons also in this appeal, is R v Fate (1998) 16 CRNZ 88.The evidence excluded by the Judge was not of that helpful character.It was indeed, as the Judge observed, in the nature of personal opinions, not expert opinions, notwithstanding that the intended witnesses had expert qualifications.Counsel could just as well, and no doubt did, make submissions on the evidence received because the authority for the opinion lay in ordinary experience and not medical expertise.The exclusion of the intended evidence was justified.

[9] Even if we had been persuaded that the evidence was wrongly excluded, we would not be satisfied that a miscarriage of justice had occurred.The verdict of the jury was delivered in terms specifically indicating that murderous intent was not proved.The defence of provocation was therefore inapplicable. As for self defence, we are satisfied that the jury was entitled to reject that on the basis that notwithstanding perceptions of threat, the appellant's use of force was unreasonable.He struck a blow with a solid piece of timber at the head of a seated man, using such force that the man died from his injuries. When the other victim attempted to intervene the appellant set about him also with the timber causing injury to his head and arms.The jury was entitled to, and plainly did, take the view that this was a case of excess force in drunken anger.In the result we are not persuaded to allow the appeal against conviction.We therefore turn to the application by the Solicitor-General on behalf of the Crown to appeal against the sentences imposed.

[10] Mr Mesui's pre sentence report ascribes alcohol abuse and dependence as a key factor contributing to the offending.Mr Mesui informed the probation officer that at one sitting he can drink five dozen cans of beer on his own. He has a conviction for driving with excess breath alcohol and he acknowledges a drinking habit since he was 12 years old.Persons interviewed by the probation officer described Mr Mesui as a happy man with a lot of friends and a good father.He is described as a devout Catholic and a faithful member of his church, as well as having attributes in sporting activities.His motivation to address his alcohol problem is assessed as high and he is not considered to be a violent person by nature.

[11] The homicide has been understandably a great tragedy for the widow and young child of Mr Sekona.Mr Mesui's family has offered reconciliation in the formal manner of Tongan culture.This included the offering of valuable mats and other gifts including cash and family supplication to Mr Sekona's family for forgiveness.

[12] In his sentencing notes the Judge accepted the essential factual situation concerning the violence at the umu as previously indicated.In his view the attack on Mr Sekona involved a single blow to the head when this victim was sitting on the ground together with an unsuccessful attempt to strike him again.He referred to the tragic consequences for Mr Sekona's family as indicated in the victim impact reports and gave Mr Mesui credit for the favourable aspects of the pre sentence report.Deep remorse was acknowledged and appropriate reference was made to the cultural significance of restitution and request for forgiveness.

[13] Counsel for Mr Mesui had emphasised the strong element of provocation in the offending.He submitted nevertheless that the Court should sentence on the basis of absence of intent.The nature of the jury's verdict supported that submission and the Judge accepted it.Counsel also submitted that there were considerations of self defence, albeit insufficient to amount to such in law because of an unreasonable excess of force.The Judge considered it a realistic appraisal of the situation that, in effect, Mr Mesui became increasingly fearful and concerned about threats to himself and his family made by the two victims.The result was a view by the Judge that mitigating factors were to be found in:-

the provocation to you, a certain element of self defence, your genuine remorse and acts of apology on your behalf and your good character.

[14] It is submitted on behalf of the Crown in support of the application for leave to appeal that the sentence is manifestly inadequate.Ms Thomas accepts, as this Court recently confirmed in R v Kane (CA154/98) and R v Fate (supra), that in cases where provocation is effective in reducing a charge of murder to manslaughter the trial Judge is in the best position to assess the culpability of the offender, and that the Judge has the right to extend mercy to an offender in appropriate circumstances.This is not a case, however, of murder reduced to manslaughter by reason of provocation but one of murder being excluded for want of murderous intent.The provocation attaches to the violence actually inflicted without such intent.Ms Thomas acknowledges that an assessment of the provocation was appropriate for sentencing purposes.

[15] She submitted, however, that there is no relevant significance in the ethnicity of the offender and his victims.Lewd, gratuitous and hostile comments about close members of one's family will be highly offensive to ordinary New Zealanders whatever their race or culture.Whilst not disagreeing with Ms Thomas' submission in this respect, we think it emphasises the significance of provocation in assessing culpability in the particular case. Furthermore, cultural factors may well require consideration in assessing culpability, as this Court recognised in R v Fate.This approach does not import different laws for different cultures, but a just recognition of any truly relevant circumstances bearing on the culpability of conduct.

[16] Ms Thomas also submitted that insufficient or no weight was given by the Judge to the specific rejection by the jury of both self defence and provocation.However, such rejection does not make it inappropriate for the Judge to acknowledge the relevance of anxiety in the face of hostility since the jury would be bound to reject the reasonable possibility of self defence if the force used was unreasonable.

[17] Ms Thomas emphasised the significance of the loss of a life as the result of deliberate and serious violence.She referred to authorities where stern sentences had been imposed for violence resulting in serious injury, such as R v Ulu (CA373/96) where three years imprisonment was imposed on a schoolboy who attacked another with a towel rail, causing grievous facial injuries.Whilst acknowledging the advantageous position of the trial Judge for assessing culpability, and a judicial prerogative of mercy, both exemplified in R v Fate, counsel submitted that the circumstances and nature of the present case were much too serious to admit of a sentence of only two years imprisonment.

[18] Mr O'Driscoll also emphasised the conventional reluctance of an appellate Court to review a sentence for manslaughter, and the justification for that reluctance.For reasons no less cogent in terms of culture than in jurisprudence, he stressed the deep remorse of the appellant and his family. Nothing in this judgment ought be taken as depreciating the significance of such matters.

[19] The sentence should recognise that this was not a case of violence limited to a single blow even though one blow killed the deceased.That blow was struck whilst the victim was seated and was followed up by a fierce attack on the other victim.Any suggestion of a pre-emptive strike is overwhelmed by the evidence of violent and intoxicated rage.A life has been lost and the victim's widow and young child are bereft.We are driven by the seriousness of the violence and its effects to the reluctant view that the most tenably merciful sentence could not be less than three years imprisonment.

[20] No adjustment is needed for the sentence of 12 months imprisonment imposed for injuring with intent to cause grievous bodily harm because a sentence of three years imprisonment appropriately reflects Mr Mesui's total culpability.

[21] For the above reasons:-

[i] The appeal against conviction is dismissed.

[ii] On the application by the Solicitor-General on behalf of the Crown, leave to appeal against the sentences imposed is granted.The sentence of two years imprisonment for manslaughter is quashed and a sentence of three years imprisonment is substituted.The appeal against sentence for injuring with intent to cause grievous bodily harm is dismissed.

Solicitors:

Crown Law Office, Wellington